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

[Eric J Segall]

Great stuff. David hope they take it!

Sent from my iPhone

On Jan 13, 2021, at 9:04 AM, Schultz, David <dschultz at hamline.edu> wrote:


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<mailto: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.


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