Constitutional law professors left, center, right: 2nd impeachment trial in the Senate unconstitutional.

Instapundit — himself the Beauchamp Brogan Distinguished Professor of Law at U. of Tennessee — uses the arcane judicial term “clown show”. But, you might say, Insty is a libertarian. [UPDATE: libertarian senator Rand Paul (R-KY) announced he will boycott the trial as being unconstitutional.] What about other law professors?

Yesterday the news came in that Chief Justice John Roberts apparently declined to preside, and that D senator Pat Leahy would instead do so, in his capacity as President Pro Tempore of the US Senate. [By long-standing tradition, in the US the most senior senator of the majority party fills that role. Though exactly how that works when the Senate is split 50:50 is a bit opaque to this foreign observer.]

Ann Althouse, law professor emeritus at U. of Wisconsin, and a political centrist, reacts to the CNN claim that Roberts ‘ducked’ his responsibility :

Ducks by skipping?!! That’s a daffy way to put it. I think it means John Roberts arrived at the view that there was no occasion for the Chief Justice to preside, and therefore he has a duty to refrain from participating. That’s not ducking and it’s not skipping. When he presides, it’s because he must, and when he refrains, it’s because he must. It’s based on an interpretation of law. […]

The article says “Sen. Patrick Leahy, a Vermont Democrat and the president pro tempore of the chamber, will preside for Trump’s second impeachment trial.” So, it seems a decision has been made, but did Roberts participate? Did the Senate Democrats want him, or are they, on their own, taking the opportunity to exclude him? Biskupic writes that the constitutional text is, “When the President of the United States is impeached, the Chief Justice shall preside,” which obscures the argument Roberts-excluders must make. The actual text is “When the President of the United States is tried, the Chief Justice shall preside.” The argument must be that Trump is no longer the President of the United States, therefore there’s no role for the Chief Justice. That also provides a foundation for an argument that there is now no occasion for a trial of impeachment — impeachment is a procedure for removing the President — and it is an abuse of power for the Senate to try the former President, deprived of the safeguard of the Chief Justice as a neutral arbiter.

And then there’s Alan Dershowitz, law professor emeritus at Harvard Law School. A liberal and a Democrat, but undeniably a legal scholar and somebody who has never refrained from taking up the defense of impopular causes when he felt they had the law on their side. In an op-ed in The Hill, he lays out how the House impeachment — the root of the Senate one, committed no fewer than six separate violations of the Constitution. Let me quote in full:

First, it violated the First Amendment, which prohibits the government from abridging free speech. By impeaching Trump for free speech that was protected in the unanimous Supreme Court decision in the case of Brandenburg versus Ohio, the First Amendment was violated.

Second, the House violated the substantive impeachment criteria for the Constitution, which limits impeachment to “treason, bribery or other high crimes and misdemeanors.” It cannot be a high crime or misdemeanor for a president to deliver remarks protected by the Constitution. If Congress can pass no law abridging free speech, then it certainly cannot pass one impeachment resolution abridging free speech of a president.

Third, it violated due process by handing the president and his legal team no opportunity to present a defense or to formally challenge the article of impeachment. This sets a precedent for any future president.

Fourth, by trying to put Trump on trial in the Senate after he leaves office, the House violated the provision that allows Congress to remove a sitting president and, only if the Senate decides to remove him by a vote, could it add the sanction for a future disbarment from running for office. Congress has no authority over any president once he leaves office. If Congress had the power to impeach a private citizen to prevent him from running in the future, it could claim jurisdiction over millions of Americans eligible to be candidates for president in 2024. This would be a perilous interpretation of the Constitution which would allow the party in control of Congress to impeach a popular candidate and preclude him from running.

Fifth, if the Senate were to conduct a trial of a private citizen, including a former president, then it would violate both the spirit and the letter of the prohibition against bills of attainder. For Great Britain, Parliament had the authority to try kings, other officials, and private citizens. The Framers of the Constitution rejected that power of Congress and also limited its trial jurisdiction to impeaching government officials only while they served in office and could be removed. To conduct a show trial of a past president would be in violation of the prohibition against bills of attainder.

Sixth, Congress voted in favor of the resolution calling on Vice President Mike Pence to violate the 25th Amendment of the Constitution by falsely claiming that Trump is unable to continue to perform his duties. It is clear that the Framers of the 25th Amendment had intended it to apply only to presidents disrupted by physical illnesses, such as a stroke, or by obvious mental incapacity, such as advanced Alzheimers, or turning unconscious after having been shot. To call on the vice president to improperly invoke the 25th Amendment was to act in violation of the Constitution.

Dershowitz goes on to criticize Trump for the speech itself, but cautions:

We often hear that no one is above the law, including the president. That is true, and it also applies to Congress. Thus, the House is not above the law. It must comply with the six provisions of the Constitution that it has violated. Trump was wrong to give his address last week, and voters are entitled to take into account all his actions in the last four years.

However, the Constitution sets limits on the power of Congress over the president. These limits are critical to our system of separation of powers and of checks and balances. When any one branch will improperly seize power it does not have, this system is undone. Just as a president should be held to account for a violation of the Constitution, then so should the House when it exceeds its authority granted by the Constitution.

And just now, Insty posted a RealClearPolitics headline, “D prospects of convicting Trump fade away“. His advice: “Drag it out as long as possible, waste their momentum and make them look dumb on TV. Then crush it.” Also Insty: “When you put clowns in charge, you’re gonna have a clown show”.

Another exhibit for the “Clowns In Charge” theory (h/t: the BbESM): ‘More like a snack for a toddler than a meal for an adult’: How our National Guard troops are being fed at the Capitol

The troops down at the Capitol say the bad meals didn’t start on Day One. In early January, according to Maryland National Guard troops, the meals were fine. Shortly before the inauguration, though, things changed, and the cold, child-sized meals started arriving.

The D.C. National Guard has provided food for most of the time the troops have been at the Capitol. It was only when the National Guard Bureau (part of the Pentagon) took over the contracting in recent days that the food went downhill. NGB spokeswoman Nahuku McFadden admitted that the contractor did not provide enough food on at least one occasion.

“Soldiers and Airmen have to go out on their own in the D.C. area and buy their own meals if nothing is donated,” one National Guard spouse reported, “mainly because the food delivered and provided by the National Guard is cold or not even worth eating. The breakfast and lunch portions look more like a snack for a toddler than a meal for an adult.”

The Guard has a duty to feed the troops decent food, and the units at the Capitol aren’t exactly cut off from supply lines. As one former officer put it, “You’re telling me that in Washington, D.C., during COVID that there’s a restaurant in town that wouldn’t do backflips to feed these troops?”

UPDATE (via Insty): Schumer: “Biden should declare a climate emergency so he can do things without Congress“. #criminallyInsane Perhaps my (alas) coreligionist might recall the original German, in response to a different ’emergency’: “Gib mir vier Jahre Zeit” (give me four years’ time)?!? יצאת מדעתך?!! [Are you out of your mind?!?] “Toddlers running with C4”, indeed.

One thought on “Constitutional law professors left, center, right: 2nd impeachment trial in the Senate unconstitutional.

  1. […] And then there’s this teeny, tiny, little problem: the unconstitutionality of this impeachment sham. Hey, don’t take it from me. Take it from Harvard Law School Professor (Emeritus) Alan Dershowitz. Dershowitz listed out numerous ways in which this “trial” is unconstitutional. Here are a few of those ways from The Hill (via Spin, Strangeness, And Charm): […]

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