[EL] Fw: Washington Post: Op-Ed on the Current Crisis

[Schultz, David]

Dear Eric:

Ackerman and Luttig are both wrong.  I sent off a piece to the Washington
Post this morning that I am sure they will not publish.  Here  is my oped.

 The constitutional framers were right to be concerned about checking
presidential power and devised several mechanisms to do that.  Donald Trump
needs to  pay a price for inciting an insurrection at the US Capitol.  But
what and how? Michael Luttig and Bruce Ackerman make mistakes in contending
that a Senate trial on impeachment charges cannot occur after the president
leaves office that Section 3 of the Fourteenth Amendment allows for
presidential disbarment from future office by a majority vote.  They also
fail in declaring the obvious–a criminal indictment and  conviction after
Trump leaves office.
Both Luttig and Ackerman contend that impeachment can only occur while the
president is in office because the language of Article II, Section Four of
the Constitution refers to conviction and removal from office.  Nothing in
the plain language of the text declares impeachment and a trial must take
place while a person is in office; the language merely states that removal
from office comes with conviction.  Moreover, even if we think the
Constitution ought to be interpreted in light of the intent of the framers,
nothing in the Convention debates, as reported by James Madison or Max
Farrand’s notes on it, suggests the Framers intended impeachment to be
limited to while a person was still in office.
Yes, the Framers, including Benjamin Franklin,  said the impeachment
process was tied to removal from office as was the British tradition, yet
there is no clear indication that their intent precluded impeachment and
conviction after leaving office.  Moreover,  given that the Framers were
concerned with checking the excesses of executive power as a result of
their experiences with King George when America was a British colony,
construing the impeachment process to allow for its use currently
contemplated in Congress is a reasonable way to adapt it to a threat
perhaps not seen in 1787.
History is against Ackerman and Luttig.  In 1877 the Senate held an
impeachment trial for Secretary of War William Belknap after he resigned
from office.  The Senate ruled it had the authority to do this.  Supreme
Court decisions on impeachment have said it generally will not second-guess
Congress on its impeachment power and it is unlikely to do so if the Senate
holds a trial after Trump leaves office.
Ackerman also contends that the language of the Fourteenth Amendment
permits Congress by a majority vote to declare that the president has
participated in an insurrection and bar him from future office.  First,
neither in the plaintext of the Amendment nor history support this
argument.  The Amendment refers to how Congress can vote to undo the ban,
not how to impose it.  The Supreme Court has ruled this clause is not
self-executing, again questioning Ackerman’s assertions.  Historians have
also argued Section Three is an artifact of the Civil War and
Reconstruction, and not applicable beyond the unique issues of those times.
Accepting Ackerman’s argument would set up a scenario where a Congress,
disliking a first-term president, could declare an incumbent president
ineligible for a second term with a mere majority vote.  This procedure
would effectively  allow Congress to negate the impeachment process and the
two-thirds vote necessary to remove a president from office. It is unlikely
the Framers of the Fourteenth Amendment intended this.
Finally, while there is debate over whether a sitting president can be
charged with a crime, there is no question he can be charged after leaving
office and a felony conviction with a determination of guilt is an obvious
way to punish and hold presidents accountable for their behavior.

On Tue, Jan 12, 2021 at 3:41 PM Eric J Segall <esegall at gsu.edu> wrote:

> From Bruce’s op-Ed. “The Constitution envisions impeachment only as a
> tool for proceeding against a president while he remains in office.”
>
> I think this is clearly wrong but it doesn’t really matter because no
> court would touch it.
>
> Best,
>
> Eric
>
> Sent from my iPhone
>
> On Jan 12, 2021, at 4:34 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> 
>
> Please do not send complete texts of articles to the listserv---send a
> link and a snippet.
>
> For copyright reasons we do not circulate full items that are protected by
> copyright.
>
> Thanks.
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of "Richard F. Ober Jr." <rober at princeton.edu>
> *Date: *Tuesday, January 12, 2021 at 1:32 PM
> *To: *"law-election at department-lists.uci.edu" <
> law-election at department-lists.uci.edu>
> *Subject: *[EL] Fw: Washington Post: Op-Ed on the Current Crisis
>
>
>
>
>
>
>
> Rick Ober
>
> Legal Analyst
>
> Princeton Gerrymandering Project
>
> (m)609-947-4207
> ------------------------------
>
> *From:* Friends_of_Bruce <friends_of_bruce-bounces at mailman.yale.edu> on
> behalf of Ackerman, Bruce <bruce.ackerman at yale.edu>
> *Sent:* Tuesday, January 12, 2021 9:23 AM
> *To:* friends_of_bruce at mailman.yale.edu <friends_of_bruce at mailman.yale.edu
> >
> *Subject:* [Friends_of_Bruce] Washington Post: Op-Ed on the Current Crisis
>
>
>
> Dear Friends,
>
>
>
> Of particular interest.
>
>
>
> Bruce
>
>
>
>
> *Washington Post (January 11, 2021)*
> Impeachment Won’t Keep Trump from Running Again. Here’s a Better Way.
>
>
>
> *By Bruce Ackerman and Gerard Magliocca*
>
> *​*
>
> at
>
>
>
>
> https://www.washingtonpost.com/opinions/2021/01/11/impeachment-wont-keep-trump-running-again-heres-better-way/
>
>
>
>
>
> *Bruce Ackerman is Sterling professor of law and political science at Yale
> Law School and author of a multivolume series, We the People, dealing with
> the dynamics of American constitutional development over the past two
> centuries. Gerard Magliocca is the Samuel R. Rosen professor at Indiana
> University’s law school in Indianapolis and the author of a forthcoming
> article dealing with the **amnesty provisions of the 14th Amendment**.*
>
>
>
> House Democrats’ plans to rush through an impeachment of President Trump
> won’t work, for a simple reason: The Constitution envisions impeachment
> only as a tool for proceeding against a president while he remains in
> office. Impeachment is meant to protect the country, not punish the
> offender. But that needn’t be the end of efforts to prevent Trump from
> again holding federal office. There is another, little-known constitutional
> provision that can achieve precisely that without distorting the
> Constitution’s meaning.
>
>
>
> Section 3 of the 14th Amendment, passed in the aftermath of the Civil War,
> bars Trump from holding another federal office if he is found to have
> “engaged in insurrection or rebellion against” the Constitution of the
> United States.
>
>
>
> The finding could be accomplished by a simple majority vote of both
> houses, in contrast to the requirement in impeachment proceedings that the
> Senate vote to convict by a two-thirds majority. Congress would simply need
> to declare that Trump engaged in an act of “insurrection or rebellion” by
> encouraging the attack on the Capitol. Under the 14th Amendment, Trump
> could run for the White House again only if he were able to persuade a
> future Congress to, “by a vote of two-thirds of each House, remove such
> disability.”
>
>
>
> Section 3 was enacted to bar any “civil or military” officer who had
> served the United States before the Civil War from regaining a position of
> authority if he betrayed his country by supporting the Confederacy. During
> the height of Reconstruction, a number of former Confederates were, in
> fact, barred from holding office. It was only in 1872 that Congress once
> again allowed these men to serve the United States by passing an Amnesty
> Act with the requisite two-thirds majorities.
>
>
>
> House Speaker Nancy Pelosi (D-Calif.) seems to believe that the only way
> to disqualify Trump from running for a second term is to gain House support
> for a second impeachment while he is still in office, even though the
> Senate trial can’t begin until Jan. 20 or 21. Since impeachment is
> designed to remove officials from office, the constitutionality of such a
> trial is problematic. But even if it were legitimate, the trial would come
> with heavy costs to the country and to the incoming Biden administration.
>
>
>
> First, the trial could well lead to Trump’s acquittal if most Republican
> senators decide that a vote to convict would damage their reelection
> chances by alienating their right-wing base. What message would that send?
> Second, having the Senate’s time consumed in holding a trial would delay
> President-elect Joe Biden’s efforts to secure confirmation of his Cabinet
> and other nominees and divert attention from other initiatives of the new
> administration. Third, it would further divide the country at precisely the
> time Biden is seeking to bring America together.
>
>
>
> Of course, this being a litigious country, Trump could appeal to the
> courts to declare that Congress’s determination that he had engaged in an
> “insurrection or rebellion” was not justified by the facts. But this would
> be risky, since Trump would be required to testify under oath in response
> to detailed questioning by the government’s lawyers about his precise
> conduct during the attack.
>
>
>
> Moreover, if the judiciary finally upheld the congressional determination,
> its judgment would undermine claims by the extreme right that Trump is a
> victim of a partisan vendetta.
>
>
>
> Even more fundamentally, the law is the law. Not only is it in the
> political interest of the protagonists to heed the express instructions of
> the 14th Amendment; it is even more important to demonstrate to all
> Americans that their representatives in Washington take the Constitution
> seriously.
>
>
>
> Now is the time to take a step back, call a halt to the House’s rush
> toward a last-minute impeachment — and deploy the constitutional means to
> the important end of making sure Trump is out of office for good.
>
>
>
> CAUTION: This email was sent from someone outside of the university. Do
> not click links or open attachments unless you recognize the sender and
> know the content is safe.
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election



-- 
David Schultz, Distinguished University Professor
Hamline University
Department of Political Science,
Department of Legal Studies,
Department of Environmental Studies
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Presidential Swing States:  Why Only Ten Matter
https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210113/d14430cb/attachment.html>