The GOP is gaslighting us again. Try, convict, and disqualify Trump.

Call out your senators to do their job. Our Constitution requires them to hold an impeachment trial.

(Header quote here.) What the GOP wants: In the live-action Constitution class which is now our country, Republicans, just off their last performance of subverting that document and two centuries of precedent to overturn our election, are backing an argument by former Judge Michael Luttig against holding a Senate hearing of Trump’s impeachment charges. His opinion, as restated by Sen. Tom Cotton (R-Ark.): “The Senate lacks constitutional authority to conduct impeachment proceedings against a former president. The Founders designed the impeachment process as a way to remove officeholders from public office—not an inquest against private citizens.

Update: Rand Paul just forced a vote on the constitutionality of an impeachment trial.

What the experts say: Steven Calabresi, the co-founder of the GOP’s beloved right-wing Federalist Society and 170 others across the legal spectrum confirmed that not only can Trump be tried by the Senate, but it is, in fact, their constitutional duty, not a choice, to try any official impeached by the House, whether in office or not. The letter was also signed by Brian Kalt, a law professor at Michigan State University, who is the “leading scholar on the specific question of whether former officials can be impeached.”

Minimal Script: I’m calling from [zip code]. I want to make sure Sen. [___] knows that 170 Constitutional experts such as Steven Calabresi, co-founder of the Federalist Society, have determined that the Senate has a constitutional duty to try Trump for inciting insurrection. And though they can no longer remove him from his seat, we want [him/her] to strongly support his conviction and the constitutional remedy of disqualifying him from future federal office.

More script if you want it: We also want Trump’s encouragement of violence in his followers, including that of rioters breaching state capitals and his failure to aid federal legislators calling for help in the Capitol building to be part of the evidence against him.

If you are emailing them:

  • Add in the ACLU’s charges. You can also use their comment link and sign their petition as well:
    • Repeatedly made knowingly false statements about voter fraud and improprieties designed to undermine the legitimacy of the election results, including in a series of frivolous lawsuits, without evidence to support the claims
    • Pressured election officials in several states, including Michigan, Pennsylvania, and Georgia, to interfere with the results of the election, including a January 2 taped phone call
    • Sought to disenfranchise people of color by targeting many of these efforts at counties and jurisdictions with predominantly Black or Brown populations
    • Directed Vice President Pence to block Congress’s certification of the Electoral College results, where the Vice President had neither the authority nor the grounds to do so
    • Urged an unruly mob to riot at the United States Capitol on January 6, in an effort to prevent the certification of the Electoral College results and to intimidate members of Congress from carrying out their constitutional duties
  • Here’s ours.
    • Failure to act – Trump gleefully watching insurrection on live tv while refusing calls for help (Slate)(WaPo)
    • Encouraged violence incursions at state capitals Idaho, Michigan and Oregon with tweets such as “LIBERATE” and praising protesters who terrorized Michigan legislators as “very good people.” ““We had hundreds of individuals storm our Capitol building,” state Rep. Sarah Anthony said in an interview. “No, lives were not lost, blood was not shed, property was not damaged, but I think they saw how easy it was to get into our building and they could get away with that type of behavior and there would be little to no consequences…The level of anxiety and fear that was intended to be imposed upon those of us in the building will probably stay with me for the rest of my life.

Call/email your own legislators.

  • Senator Feinstein: email, DC (202) 224-3841, LA (310) 914-7300, SF (415) 393-0707, SD (619) 231-9712, Fresno (559) 485-7430
  • and Senator Padilla: email, DC (202) 224-3553, LA (310) 231-4494, SAC (916) 448-2787, Fresno (559) 497-5109, SF (415) 981-9369, SD (619) 239-3884 (Updated contacts still in-progress.)
  • Who is my representative/senator?:

Send postcards to any legislator you want!

One proposal for a postcard script. Stamp and address on reverse side.

From Washinton Post’s whip count on conviction votes:

Open to conviction: Jerry Moran (R-KS), Richard Burr (R-NC) , Shelley Moor Capito(R-WV), Susan Collins (R-ME), James M. Inhofe (R-OK), James Lankford (R-OK), Mitch McConnell (R-KY), Lisa Murkowski (R-AK), Rob Portman (R-OH), Mitt Romney (R-UT), Ben Sasse (R-NE), Richard Cl Shelby (R-AL), Dan Sullivan (R-AK), Thome Tillis (R-NC), Patrick J. Toomey (R-PA), Angus King (I-ME), Catherine Cortez Masto (D-NV), Tim Kaine (D- VA), Mark Kelly (D-AZ), Joe Manchin III (D-WV), Robert Menendez (D-NJ), Jon Ossoff (D-GA), Jack Rosen (E-NV)

Unknown: Mike Crapo (R-ID), Deb Fischer (R-NE), John Neely Kennedy (objected) (R-LA), Mike Lee (R-UT), James E. Risch (R-ID), Todd C. Young, (R-IN), Kyrsten Sinema (D-AZ), Raphael Warnock (D-GA)

Mailing Addresses:

  • Representatives here. (Clicking on their name will give you their DC and state addresses.)
  • Senators here.

Deeper Dive

(One positive thing about having a terrible president is that it’s so educational.)

Direct Response to former Judge Luttig.

The Republicans are leaning on an analysis of the constitution by former Judge Michael Luttig. Here’s an excellent article on the flaws of his argument that ex-presidents can’t be convicted at an impeachment trial.

The cast of characters in this play

  • The House: (ArtI.S2.C5.1.1) “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
    • Keith E. Whittington:The House has frequently chosen to drop its impeachment efforts when an officer resigns; in those cases, it has generally either not voted on an impeachment resolution, not drafted articles of impeachment or not presented articles of impeachment to the Senate. But the fact that the House frequently concludes that its goals have been accomplished by the officer’s resignation does not mean that the House could not have seen the impeachment through all the way to a Senate verdict.”
  • The Senate: (ArtI.S3.C6.1): “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
    • Keith E. Whittington:He (was) “at the time of his impeachment” an incumbent president, and the House has now resolved by majority vote to impeach him. Setting aside the question of whether presentation to the Senate is necessary to complete the House’s process of “impeachment,” Trump has by our modern reckoning now been “constitutionally impeached.” At that point, trial, conviction and disqualification would appear to be on the table, even if removal is not.
  • The Punishment: (ArtI.S3.C7.1.1): Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
    • Scholars Edwin Brown Firmage and R. Collin Mangrum wrote in a 1974 law review article, “the impeachment judgment may extend to both removal from office and disqualification from holding any further office.” But, if the official leaves their current office, that “accomplishes only the first objective.”
    • Says Brian C. KaltThis article considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him.
  • The Defendant: Trump was impeached while still in office on January 13th. However, the Constitution does NOT require the official to still hold office to sit for an impeachment trial.

Letter – Constitutional Law Scholars on Impeaching Former Officers

The original Letter referred to in the Politico article is here. What follows below is an excerpt.

January 21, 2021

Now that President Trump has left office, may the Senate take up an article of impeachment, and try, convict, and disqualify President Trump from holding future office? We, the undersigned constitutional law scholars, conclude it can.

We take no position on whether the Senate should convict President Trump on the article of impeachment soon to be transmitted by the House of Representatives.

We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation. But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.

Our shared conclusion is supported by the text and structure of the Constitution, the history of its drafting, and relevant precedent. The Constitution allocates the “sole Power of Impeachment” to the House of Representatives, and the “sole Power to try all Impeachments” to the Senate. It provides that the “President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It further specifies that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

In other words, the Constitution’s impeachment power has two aspects. The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power.

Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires. But nothing in the provision authorizing impeachment-for- removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.

If impeachment were only a device for removing officials from office, then perhaps only current officers could be impeached. But disqualification is a consequence that might need to be imposed on prior officeholders as well as current ones. In keeping with that rationale, nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office. Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct. If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.

History supports a reading of the Constitution that allows Congress to impeach, try, convict, and disqualify former officers. In drafting the Constitution’s impeachment provisions, the Framersdrew upon the models of impeachment in Great Britain and state constitutions. In 1787, English impeachment was understood to allow for the impeachment, trial, and conviction of former officials; likewise, the law of several states made clear that waiting to impeach officials until they were out of office was preferred or even required, and no state barred the impeachment of former officials.

More broadly, a singular concern of the Framers in devising our constitutional system was the danger of a power-seeking populist of the type they referred to as a “demagogue” rising to the highest office and overthrowing republican government. The Framers further understood that the source of such a person’s power does not expire if he or she is expelled from office; so long as such a person retains the loyalty of his or her supporters, he or she might return to power. The Framers devised the disqualification power to guard against that possibility, and would surely disagree that a person who sought to overthrow our democracy could not be disqualified from holding a future office of the United States because the plot reached its crescendo too close to the end of his or her term.

Precedent also buttresses our conclusion that Congress may try, convict, and disqualify former officers: Congress has done it in the past. In 1876, Secretary of War William Belknap tried to avoid impeachment and its consequences by resigning minutes before the House voted on his impeachment. The House impeached him anyway, and the Senate concluded that it had the power to try, convict, and disqualify former officers. Even in cases when impeachment proceedings were dismissed after the subject resigned, Congress has indicated that it was choosing to drop the case rather than being compelled to do so by the Constitution. Belknap was not a president, but there is no reason whey the same rule would not aply to presidents – after all, the Constitutions impeachment provisions apply to presidents, vice presidents, and civil officers alike.

In sum, the Constitution’s text and structure, history, and precedent make clear that Congress’s impeachment power permits it to impeach, try, convict, and disqualify former officers, including former presidents. The Senate may take up the House’s article of impeachment against former President Donald J. Trump, conduct a trial, convict him, and disqualify him from holding a future office of the United States.

(Click here for the original letter with the listing of 170 legal scholars, setting forth the reasons why impeachment and trial of officials who have left office is in fact constitutional. Says Ilya Somin – “The list of signers is notable for its ideological diversity—unusual in an era when legal scholars’ views on controversial issues are often polarized along ideological lines.”)

Do you have more time?


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