President Donald J. Trump impeached: What’s next?

United States Capitol Building under stormy skies

Credit: Mark Mackoviak/iStock

On Wednesday, Dec. 18, the U.S. House of Representatives voted to impeach President Donald J. Trump, making him the third president since the founding of the United States to face this sanction.

Trump’s impeachment now sets up a trial in the U.S. Senate, where support from two-thirds majority of senators present would be necessary to convict and remove the president from office. As required by the Constitution, the Chief Justice of the United States, John Roberts ’79, will preside over the Senate impeachment trial.

Harvard Law faculty have testified in the impeachment process and have offered constitutional and historical perspective as the hearings unfolded in the House. Below, a number of faculty weigh in on how we got to Wednesday’s impeachment vote, and what we should expect when the proceedings move to the Senate.

Don’t Be Confused by Trump’s Defense. What He Is Accused of Are Crimes.

An article by Nikolas Bowie: Watching CNN last week, I learned that I’m partly responsible for President Trump’s legal defense. On the screen was one of the president’s lawyers, Alan Dershowitz, explaining his new position that impeachment requires “criminal-like behavior.” When the legal analyst Jeffrey Toobin interjected that “every single law professor” disagreed with him, Mr. Dershowitz rejoined that one professor — me! — was “completely” on his side. Mr. Dershowitz encouraged Mr. Toobin to read a law review article I wrote on the impeachment of President Andrew Johnson, in which a former Supreme Court justice, Benjamin Curtis, successfully argued that no one should ever be punished for doing something that wasn’t a crime. Mr. Dershowitz apparently thought my article supported his view that even if Mr. Trump did everything the House has accused him of doing, the president shouldn’t be convicted because he hasn’t been accused of criminal behavior. As an academic, my first reaction was to be grateful that someone had actually read one of my articles. But as a legal academic, my second reaction was confusion. Even if you think impeachment requires a crime, as I do, that belief hardly supports the president’s defense or Mr. Dershowitz’s position. President Trump has been accused of a crime. Two in fact: “abuse of power” and “obstruction of Congress.”

Continue Reading at New York Times »

What if It Were Obama on Trial?

What if it were President Barack Obama who was the subject of the Senate impeachment trial? How would we feel then? Cass Sunstein, a professor at Harvard Law School, suggests a question along those lines in his book “Impeachment: A Citizen’s Guide.” It’s one of several thought experiments that I suggest in order to step back from the hurly-burly in the Senate and interrogate our own principles and motivations. The first approach, as Sunstein puts it, is this: “Suppose that a president engages in certain actions that seem to you very, very bad. Suppose that you are tempted to think that he should be impeached. You should immediately ask yourself: Would I think the same thing if I loved the president’s policies, and thought that he was otherwise doing a splendid job?” Alternatively, if you oppose impeachment and removal, Sunstein suggests you ask yourself: “Would I think the same thing if I abhorred the president’s policies, and thought that he was otherwise doing a horrific job?” In practical terms, this amounts to: What if it were Obama who had been caught in this Ukraine scandal?

Continue Reading at New York Times »

And Now, Three Days of Attacks From Trump’s Lawyers

An article by Noah FeldmanThis weekend marks a pivot point in President Donald Trump’s Senate impeachment trial. Until now, the impeachment narrative has been driven overwhelmingly by the president’s critics. It started with the impeachment inquiry in the House of Representatives, culminated in the dramatic and almost purely party-line impeachment vote; and it continued with the skillful presentation of the prosecution’s case by the House managers over three long days in the Senate. But all that focus on Trump’s wrongdoing is now over. Trump’s lawyers will have the floor for three days of their own. And after that, if no witnesses are called, the trial will barrel towards a final vote — one the president is expected to win easily. The consequences of the pivot to Trump’s defense team will be deeply significant — both for the politics of the next nine months leading to the 2020 presidential election, and for the construction of American history in the future.

Continue Reading at Bloomberg »

Impeachment Day 3: Understanding Legal Arguments From Both Sides Of The Aisle

The third day of President Trump’s Senate impeachment trial. Law experts share their take on the president’s case – and what’s at stake for the Constitution and the country. Guests: Laurence Tribe, professor of constitutional law at Harvard University Law School. Co-author of “To End a Presidency: The Power of Impeachment and the Constitution.”

Continue Reading at On Point »

Maybe the Senate Isn’t Up to the Job of Trump’s Impeachment Trial

An article by Noah Feldman: President Donald Trump is on trial in the Senate. But the Senate is on trial, too — to see if it’s capable of fulfilling its constitutional duty to hold a credible impeachment trial. James Madison thought the Supreme Court, not the Senate, should try presidential impeachments. Until now, the other framers’ rejection of Madison’s idea seemed to have been wise. Yet the unprecedented degree of partisanship in Trump’s “trial,” and the possibility that for the first time there will be no witnesses, raises the possibility that the framers’ impeachment design has hit a dead end.

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‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus

As President Trump’s impeachment trial opens, his lawyers have increasingly emphasized a striking argument: Even if he did abuse his powers in an attempt to bully Ukraine into interfering in the 2020 election on his behalf, it would not matter because the House never accused him of committing an ordinary crime…Mr. Dershowitz said he intended to model his presentation on an argument put forward at the 1868 impeachment trial of President Andrew Johnson by his chief defense counsel…Mr. Johnson was saved from conviction and removal when the vote fell one short of the necessary supermajority. Mr. Curtis had argued that Mr. Johnson was not accused of committing a legitimate crime, and that removing him absent one would subvert the constitutional structure and make impeachment a routine tool of political struggle. But other legal scholars, like Laurence Tribe, a constitutional specialist at Harvard Law School and an outspoken critic of Mr. Trump, have argued that Mr. Dershowitz is overreading and misrepresenting this aspect of the Johnson trial…In an opinion article in The Washington Post, Mr. Tribe accused Mr. Trump’s legal team of using “bogus legal arguments to mislead the American public or the senators weighing his fate.”

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What did founding fathers mean by ‘high crimes’?

Constitutional scholar Noah Feldman tells Christiane Amanpour that President Trump’s legal defense amounts to a “linguistic game.”

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Trump’s ‘exoneration’ is inevitable, but his impeachment will be a stain on his record forever, Laurence Tribe says

As President Donald Trump’s impeachment trial gets underway on Tuesday, most Democrats will have already come to terms with the reality that the president will almost certainly be cleared of his alleged crimes…However, while Trump’s acquittal may feel “inevitable,” Laurence Tribe, the Carl M. Loeb University Professor at the Harvard Law School of Harvard University, told Newsweek on Tuesday, for many voters across the country, the Senate’s decision may never feel like a “genuine exoneration” for the president…As Tribe noted, with party lines becoming increasingly divided, expecting lawmakers to vote without party bias feels like wishful thinking for many. The only real hope of keeping the government in check, Tribe said, appears to lie with the American people. “I’m afraid that is very much the message,” the scholar said. “That you better not elect a president who is a demagogue wannabe dictator because we don’t have a good way of removing the president.” Ultimately, Tribe said, the 2020 election may be the only way that Americans can see Trump removed for the crimes he has been accused of committing.

Continue Reading at Newsweek »

As Impeachment Trial Gets Underway, A Fierce Debate About The Rules

The Senate impeachment trial of President Donald Trump began Tuesday with a fierce debate over the rules that Senate Majority Leader Mitch McConnell put forth for the proceedings. Key sticking points included the questions of whether any witnesses will be called and whether new evidence can be introduced. Republicans maintained that only information learned during the House proceedings should count and Democrats argued it is the Senate’s duty to hear all available evidence. Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School; and Renee Landers, Suffolk Law Professor and constitutional law expert joined Jim Braude Tuesday on Greater Boston to discuss the first day of the president’s trial in the Senate.

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Why Did Alan Dershowitz Say Yes to Trump?

Forty years ago, when I was a student at Harvard Law School, I enrolled in Alan Dershowitz’s class on professional responsibility. “Everyone is entitled to a lawyer,” he told us. “But not everyone is entitled to me.” Any lawyer in private practice can generally say no when asked to take on a case. So why did Mr. Dershowitz say yes to Donald Trump and agree to represent him in his Senate impeachment trial?…Mr. Dershowitz said that he was defending Mr. Trump to protect the Constitution, but serious constitutional scholars didn’t buy his argument. Another of my former professors, the constitutional law expert Laurence H. Tribe, responded with an op-ed essay in The Washington Post. “The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject,” he wrote. “There is no evidence that the phrase ‘high crimes and misdemeanors’ was understood in the 1780s to mean indictable crimes.” Mr. Tribe likewise debunked Mr. Dershowitz’s argument that the president could not be impeached for “abuse of power,” noting, “No serious constitutional scholar has ever agreed with it.”

Continue Reading at New York Times »

First, it was ‘Cocaine’ and ‘Moscow.’ Now, McConnell has a new nickname: #MidnightMitch

Senate Majority Leader Mitch McConnell’s rules for the impeachment trial of President Trump earned him a new nickname Tuesday: Midnight Mitch.
The moniker trended on Twitter to mock the organizing resolution the senator circulated late Monday, which allows each side 24 hours to make opening arguments and could result in testimony continuing past midnight…The memes continued even after McConnell’s resolution was changed to relax the timetable for arguments, stretching the 24 hours of testimony over three days instead of two. The nickname was apparently coined by Carl Bernstein, the former Washington Post reporter whose reporting on the Watergate scandal led to President Richard M. Nixon’s resignation…Laurence Tribe, a prominent Harvard Law professor, criticized McConnell’s first version of trial rules, saying they “aren’t rules for a real trial at all, much less a fair one.” “They’re rules for a rigged outcome, with #MidnightMitch making sure that as much of the so-called trial as possible takes place in the dark of night,” he said in a tweet.

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Justice Department Independence? Not With Trump

An article by Noah FeldmanPresident Donald Trump’s legal defense is putting a lot of weight on a brand-new memo from the Office of Legal Counsel. In fact, the memo appears to have been written specifically as part of the president’s defense strategy. That’s noteworthy because the OLC is part of the Department of Justice: It’s supposed to be legally independent, not partisan, and certainly not part of the president’s defense team. The memo’s reasoning borders on egregious. It concocts a technicality to invalidate the subpoenas issued by the House of Representatives during the impeachment inquiry, making it somehow legitimate for Trump to have obstructed Congress — the basis of one of the articles of impeachment the president faces. And then there’s the timing of the memo. It’s dated January 19, 2020, two days before the impeachment trial was slated to begin, and one day before Trump’s legal team issued its own memo summarizing his defense.

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Democrats rebuke Mitch McConnell’s impeachment trial rules as cover-up attempt: “National disgrace”

Democrats accused Senate Majority Leader Mitch McConnell of a “cover-up” after his plan to speed up President Donald Trump’s impeachment trial was unveiled. McConnell submitted a resolution Monday that would limit opening arguments to 24 hours over just two days, meaning the trial could stretch past midnight. The plan also gives senators up to 16 hours for questions and four hours of debate. After that, senators would vote whether to allow witnesses and new evidence. Witnesses would be deposed privately and the Senate would then vote whether to allow them to testify publicly. The Senate is expected to vote Tuesday on the resolution. Republicans are expected to approve the rules down party lines, according to Politico. Democrats slammed the proposal, warning that the rules are likely to result in key evidence being presented at 2 to 3 am… “These aren’t rules for a real trial at all, much less a fair one,” Harvard law professor Laurence Tribe added. “They’re rules for a rigged outcome, with #MidnightMitch making sure that as much of the so-called trial as possible takes place in the dark of night.”

Continue Reading at Salon »

‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus

As President Trump’s impeachment trial opens, his lawyers have increasingly emphasized a striking argument: Even if he did abuse his powers in an attempt to bully Ukraine into interfering in the 2020 election on his behalf, it would not matter because the House never accused him of committing an ordinary crime. Their argument is widely disputed…Other legal scholars, like Laurence Tribe, a constitutional specialist at Harvard Law School and an outspoken critic of Mr. Trump, have argued that Mr. Dershowitz is overreading and misrepresenting this aspect of the Johnson trial, especially against the backdrop of other evidence about the original understanding of “high crimes and misdemeanors” and the range of factors that went into Mr. Johnson’s narrow acquittal. In an opinion article in The Washington Post, Mr. Tribe accused Mr. Trump’s legal team of using “bogus legal arguments to mislead the American public or the senators weighing his fate.”

Continue Reading at New York Times »

Tribe demolishes Dershowitz for claim Trump can do no wrong: ‘He’s selling out for attention’

On Monday’s edition of CNN’s “Anderson Cooper 360,” Harvard Law professor Laurence Tribe excoriated his former colleague Alan Dershowitz’s argument that President Donald Trump’s conduct cannot be impeachable without specific crimes. “We’ve got a president who was shaking down a foreign government for his own benefit, for his own re-election. He was using taxpayer money to do it,” said Tribe. “He is engaged in the kind of abuse that Alexander Hamilton, James Madison, any of our framers would have said requires that we end the presidency, especially when the abuse goes to meddling in the next election. And when Alan Dershowitz or anybody, although I don’t know anybody else who really does it, comes up and says, well, it’s an abuse but it’s not a crime or crime-like, and therefore we can’t remove him for it. That really — that’s disgusting. There is no basis in the Constitution or in our history for that.”

Continue Reading at Raw Story »

Constitutional law expert explains why Trump’s attorneys should not ‘be allowed to use bogus legal arguments’ during impeachment trial

As President Donald Trump’s impeachment trial moves along, much of the right-wing media will no doubt be echoing the arguments of the attorneys who are representing Trump during the trial — including Alan Dershowitz, Kenneth Starr and former Florida Attorney General Pam Bondi. But attorney Laurence H. Tribe, an expert on constitutional law and co-author of the book, “To End a Presidency: The Power of Impeachment,” emphasizes in a Washington Post op-ed that Trump’s attorneys are using “bogus” and wildly misleading arguments in his defense. The 78-year-old Tribe is especially critical of Dershowitz in his op-ed. Dershowitz, Tribe notes, has argued that the two articles of impeachment Trump has been indicted on — abuse of power and obstruction of Congress — should be dismissed because neither “can count as impeachable offenses.” But in fact, Tribe asserts, both abuse of power and obstruction of Congress are quite impeachable.

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VERIFY: Senators swore an oath of impartiality. So are they guilty of perjury if they have a known bias?

QUESTION: Senators who have already said how they are going to vote, and have expressed a bias, are they automatically guilty of perjury when they take their ‘impartiality’ oath? ANSWER: No, thanks to special protections the Founding Fathers gave to Congress. SOURCES: Robert Ray – partner at Zeichner Ellman & Kraus LLP, James Ziglar – Senior Counsel at Van Newss Feldman LLP, Lawrence Lessig – Professor at Harvard Law School…Lawrence Lessig, a law professor at Harvard University, referred our researchers to an Opinion piece he penned in The Washington Post. “To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment,” Lessig wrote in the Washington Post. “Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past.” So we can verify that senators are not automatically guilty of perjury, if they’ve already expressed how they will vote on impeachment.

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Tribe blasts McConnell’s ‘dark of night’ Trump trial ‘cover-up’

Moments after Senate Majority Leader McConnell released his impeachment trial rules, Harvard constitutional law scholar, Laurence Tribe joins MSNBC’s Ari Melber warning Senate Republicans “they will be judged through history” for depriving the American people a fair trial, instead doing it in “the dark of night.” Tribe wonders whether Republicans will “go along with the McConnell cover-up” or “put the brakes on and insist on a real trial.” Alarmed by the accelerated pace of the trial, Tribe argues “justice compressed can be justice destroyed.”

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‘Dersh-o-mania!’: Laurence Tribe demolishes Trump lawyer’s ‘Wizard of Oz’ impeachment defense

On the eve of Trump’s historic impeachment trial, Harvard University’s Constitutional Law Scholar Laurence Tribe hammers his former Harvard colleague and Trump defense lawyer, Alan Dershowitz. Tribe says he is “very disappointed” in Dershowitz, adding he is taking a “Wizard of Oz” approach to impeachment by claiming his “client is the constitution of the United States.” Tribe calls for the attention to be taken off of the “Dersh-o-mania” of Trump’s defense arguments, and focus on the “solemn proceeding” of impeachment and Trump’s alleged “serious” crimes of “using his power to subvert the integrity of our elections.”

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Trump Defense Memo Is Wrong About High Crimes and Obstruction

An article by Noah Feldman: President Donald Trump’s lawyers have filed a 110-page memorandum sketching out the defenses they intend to raise at his impeachment trial. Overall, it’s a pretty poor showing. The memo includes some political posturing. It also contains specious claims to the effect that Trump did nothing wrong on his July 25, 2019 phone call. The memo’s centerpiece, however, is a handful of dubious legal arguments about why his impeachment is supposedly illegitimate. There’s nothing here to convince Democrats; and precious little that would give Republicans the cover some may want to vote against removing Trump from office.

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White House Counsel Shouldn’t Act as Trump’s Impeachment Lawyer

An article by Noah Feldman:  White House counsel Pat Cipollone will reportedly lead the team that represents President Donald Trump in the Senate impeachment trial. Superficially, this may sound logical. The opposite is true. It’s highly problematic for Cipollone to represent Trump in the Senate. For starters, Cipollone is the author of the letter to executive […]

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Democrats can get witnesses with 50 votes — if Roberts does his job

Three or four? It’s a question being hotly debated as House Speaker Nancy Pelosi (D-Calif.) prepares to transmit the articles of impeachment against President Trump to the Senate for trial. Will it take four Republican senators to buck Majority Leader Mitch McConnell (R-Ky.) and force the Senate to consider additional testimony and documents? Or could the votes of just three Republicans — bolstered by Chief Justice John G. Roberts Jr. — do the trick? The answer to the question hinges on the role of the chief justice, who the Constitution specifies shall “preside” over the trial…In any other setting besides the trial of the president, a 50-50 Senate tie would be broken by the vice president, who under Senate rules occupies the position of “presiding officer” in an impeachment trial. But the chief justice fills that role in the case of a presidential impeachment, which raises questions about whether he should behave any differently. Many have argued that the chief justice will play a strictly honorary role at the trial, with no substantive input whatsoever…Harvard Law School professor Laurence Tribe told me he “agree[s] strongly that the role is not solely honorific or purely decorative.”

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New evidence of impeachable conduct: Could it get worse for Trump?

One can only imagine what evidence we have yet to see during the impeachment proceedings against President Trump. With each new tranche of evidence — including emails regarding the hold on military aid to Ukraine and now documents from Lev Parnas, an associate of Trump lawyer Rudolph W. Giuliani’s — the conclusion that Trump abused power and obstructed the investigation becomes incontrovertible. The Post reports: “Three House committees sent dozens of pages of new evidence to the House Judiciary Committee ahead of Wednesday’s transmission of the articles of impeachment, ramping up pressure on Trump to provide Congress with additional documents related to his efforts to get Ukraine to announce an investigation into the Bidens”…Constitutional scholar Laurence Tribe tells me the new evidence is ” jaw-dropping” and “highly incriminating of both Giuliani and Trump.” Tribe says, “It’s bound to find its way into the Senate trial after Parnas is deposed by the House Judiciary and Intelligence committees, as he’s bound to be.” Tribe continues, “The Giuliani letter presenting himself to Zelensky as representing Donald Trump in his private capacity at a time when Zelensky was the president-elect of Ukraine is remarkable in itself. It is a kind of hologram of the whole Ukraine-gate scandal.”

Continue Reading at Washington Post »

Senate Impeachment Trial Won’t Look Like ‘Law & Order’

An article by Noah FeldmanIf you’re expecting President Donald Trump’s impeachment trial in the U.S. Senate to be a matter of high drama, it’s time to lower your expectations. The trial won’t look much like “Law & Order,” or for that matter any other criminal trial you’ve seen on TV or in real life: There will be no witnesses in the opening phase, and likely none at any point in the proceedings. Instead, it will look much more like a series of speeches by the House impeachment managers and Trump’s lawyers. How can it be that the impeachment trial will barely be a trial at all? The answer lies in the Senate’s own changing practices over the centuries. Given the Senate’s love for protocol, you might imagine that there would be some time-tested, universally respected procedure for how an impeachment trial should go. The truth is otherwise.

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Why Mitch McConnell must allow Senate to call witnesses in Trump’s impeachment trial

An article by Laurence TribeThe case for calling witnesses in the Senate’s impeachment trial of President Trump, and for subpoenaing documents that the White House has withheld from Congress, is now too compelling to deny. There is so much public support for hearing all the relevant evidence, and not just among Democrats, that it is becoming politically toxic for increasingly many senators to resist doing so. Senate majority leader Mitch McConnell’s efforts to bury the truth and turn the trial into a whitewash with a quickly delivered foreordained conclusion have all but come to naught, thanks in large part to the patience and savvy of House Speaker Nancy Pelosi, who wisely resisted the pressure to transmit the two articles of impeachment within days of the House vote impeaching Trump. If it’s already clear that the witnesses whom the president has successfully silenced thus far, despite their firsthand knowledge of what he knew and when he knew it in the context of shaking down Ukraine for his personal benefit, are indeed likely to be called, why take the trouble of saying more about the need for them to appear in the impeachment trial?…The reason is that we cannot afford to leave any stone unturned when dealing with as lawless and fickle a presidential administration and its Senate accomplices as the Trump/McConnell cabal has shown itself to be.

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Laurence Tribe: Mitch McConnell has no right to “dismiss” articles of impeachment

In recent days, Senate Majority Leader Mitch McConnell has floated the idea that the Senate might vote to dismiss the articles of impeachment against President Trump without ever holding a trial. Harvard Law professor Laurence Tribe, who helped House Democrats draft the articles of impeachment in the first place, told Salon this week McConnell has no right to do that. Senate rules dating to 1886, Tribe said, give the upper chamber of Congress “no jurisdiction to begin its impeachment trial until the articles have been submitted by the House to the Senate.” Until that happens, he continued, the Senate “cannot purport to dismiss the articles that would trigger the trial. The House retains jurisdiction, under the rules it has duly enacted, until it selects impeachment managers and transmits the articles of impeachment to the Senate.”

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What the Constitution actually says about a Senate impeachment trial

An article by Nancy Gertner: It’s common to hear television commentators intone about how an impeachment trial in the Senate is “just” a political process, not a legal one, as if that means a free for all, the typical horse-trading of a legislative session. While the Constitution is not often specific, when it comes to impeachment, the words are fairly clear, especially on the issues now being debated: Should there be live witnesses at a Senate trial? How impartial should the senators be? Should there be additional evidence in the Senate that was not produced before the House?…One thing, though, hasn’t changed. Jurors then and now take an oath to be impartial — just like the Senate’s impeachment oath…In fact, the reason why the Framers rejected having impeachment in the Supreme Court, according to Harvard Law Professor Larry Tribe and Georgetown Law Professor Joshua Matz, was not just that they knew the Court could include justices appointed by the sitting president; they reasoned that the Senate’s sheer size as compared to that of the Court would safeguard against corruption.

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William Barr, Trump’s Sword and Shield

Last October, Attorney General William Barr appeared at Notre Dame Law School to make a case for ideological warfare. Before an assembly of students and faculty, Barr claimed that the “organized destruction” of religion was under way in the United States. “Secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” he said. … Laurence Tribe, a professor of constitutional law at Harvard, warned that Barr’s and Trump’s efforts could permanently alter the balance of power among the branches of American government. “If those views take hold, we will have lost what was won in the Revolution—we will have a Chief Executive who is more powerful than the king,” Tribe said. “That will be a disaster for the survival of the Republic.” … But his ideology has not changed much, according to friends and former colleagues. “I don’t know why anyone is surprised by his views,” Jack Goldsmith, a law professor who headed the Justice Department’s Office of Legal Counsel during the George W. Bush Administration, told me. “He has always had a broad view of executive power.”

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Don’t allow McConnell to swear a false oath

An article by Lawrence Lessig: Before the Senate begins its trial to determine whether the president should be convicted of the charges for which he has been impeached, the jury — the members of the Senate — must be sworn to service. The oath is mandated by the Constitution; its language, set by Senate rules, requires each senator to swear to “do impartial justice according to the Constitution and laws.” To swear a false oath is perjury — the crime President Bill Clinton was charged with in his impeachment. Yet given the Constitution’s speech or debate clause, a senator likely could not be charged with perjury for swearing falsely on the Senate floor. Instead, it is the Senate itself that must police members’ oaths — as it has in the past.

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‘Indefensible’: Hundreds of Lawyers Criticize McConnell Over Senate Impeachment Trial

Hundreds of lawyers have signed onto an open letter criticizing Senate Majority Leader Mitch McConnell for his comments saying the Senate’s upcoming impeachment trial does not have to be impartial. In the letter to the Senate, published Tuesday by the group Lawyers Defending American Democracy, the lawyers said that McConnell’s “assertions cannot withstand scrutiny”…Harvard Law professor Laurence Tribe is also among the signatories. In a phone interview Tuesday, he described McConnell’s efforts as an attempt to turn the Senate trial into a ‘political whitewash.’ “The reason the Framers gave the Senate the sole power to try impeachments, rather than conducting merely a poll of some political kind, is that they contempted that there would be evidence, there would be witnesses,” Tribe, who advised House Democrats during the impeachment proceedings, said. He noted that senators have to take an additional oath ahead of a Senate impeachment proceeding, and said the country “is entitled” to each senator having “an open mind and try to get to the truth.” However, Tribe predicted that not all is lost when it comes to getting witness testimony in the Senate trial.

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John Bolton Is Bluffing

An article by Noah FeldmanHas John Bolton had some sort of constitutional revelation? Back in November, President Donald Trump’s former national security adviser made it clear that he would not testify voluntarily before the House of Representatives’ impeachment inquiry, and that if subpoenaed he would go to court to ask for judicial direction. Yesterday, Bolton issued a statement indicating that if subpoenaed by the Senate during Trump’s trial, he would testify. What changed? Although Bolton gave a constitutional explanation for his flip-flop, it’s difficult to see a coherent argument in it. The most likely explanation is politics: Bolton seems to be calculating that Senate leader Mitch McConnell will do everything he can to avoid allowing Bolton to be called. That would mean Bolton can now present himself as willing to testify without actually having to appear.

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Trump Impeachment Trial Doesn’t Need More Evidence

An article by Noah Feldman: Mitch McConnell is giving every indication that President Donald Trump’s Senate impeachment trial will not introduce any new evidence. Instead, it will use only the evidence gathered by the House of Representatives and cited in the articles of impeachment. Is this, have some Democrats have argued, a travesty of justice? The short answer is no. There is already more than enough evidence to convict Trump of the high crimes and misdemeanors with which he is charged. And although they’ll protest, this outcome might be better for Democrats politically than striking some kind of deal with McConnell. Of course, it would be preferable for the Senate to call former national security adviser John Bolton, acting chief of staff Mick Mulvaney, Mulvaney’s adviser Robert Blair and budget official Michael Duffey. Bolton has even said he would testify if called — although the timing of his announcement, on the eve of McConnell’s, lends credence to my theory that he only offered to testify on the expectation that he would not actually have to do it.

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Pelosi’s strategy pays off: Now bring in Bolton

Former national security adviser John Bolton said Monday that he is “prepared to testify” if called as a witness by the Senate. Bolton’s attorney previously said he would be guided by the courts on whether to testify in the impeachment proceedings…Why Bolton would now decide to make himself available will be a matter of speculation…Whatever the reason, Bolton’s announcement on Monday put Majority Leader Sen. Mitch McConnell (R-Ky.), not to mention other persuadable Republican senators, in a box. Facts subsequent to the House impeachment have become known that directly pertain to Trump’s conduct and, to boot, a critical witness is now suddenly available. Do Senate Republicans try to sweep all that under the rug, risking that Bolton will later tell his story publicly and incriminate a president whose misdeeds the Senate helped cover up? That would seem intensely unwise. “This means that only McConnell and his GOP caucus stand between what Bolton says he’s ready to testify under oath in a Senate trial and the American people,” tweeted constitutional scholar Laurence Tribe. “Your move, Mitch.” House Speaker Nancy Pelosi (D-Calif.) is in the driver’s seat because she wisely held up the articles of impeachment. She can now turn to the Senate and say: Agree upon rules for the trial that guarantee Bolton’s and other key witnesses’ appearance or we will hold on to the articles and subpoena Bolton ourselves.

Continue Reading at Washington Post »

Ten Republicans sign onto Josh Hawley’s proposal to dismiss Trump’s impeachment

Ten Republican senators have signed onto Sen. Josh Hawley’s proposal to change the Senate rules to enable the chamber to dismiss President Donald Trump’s impeachment. The Missouri Republican’s proposed rules change would empower the Senate to dismiss articles of impeachment if the House fails to deliver them within 25 days of its impeachment vote. Hawley’s resolution, unveiled Monday, is a response to House Speaker Nancy Pelosi’s decision to withhold the articles of impeachment against Trump…A change to the Senate rules requires a two-thirds majority of 67 votes. Republicans only hold 53 seats in the Senate, but Hawley hinted Monday that Republicans could bypass the requirement through a tactic often referred to as the nuclear option…Laurence Tribe, a Harvard Law School professor who advised House Democrats during the impeachment process, warned that any efforts to bypass the 67-votes requirement would be “not just nuclear but thermonuclear. As long as there are any cloture rules at all, a simple majority cannot suffice to amend the Senate’s standing rules. Without cloture rules, the Senate would cease to be the Senate.” On top of that, Tribe said that if Hawley’s proposal received the 67 votes required to change a Senate rule it could apply to future impeachments but not necessarily Trump’s impeachment.

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John Roberts: justice once labelled a ‘disaster’ by Trump to oversee impeachment trial

Running for president four years ago, Donald Trump called John Roberts, the chief justice of the US supreme court, “an absolute disaster” and “a nightmare for conservatives.” Now Trump faces an impeachment trial in the US Senate in which his political fate could rest in the hands of the presiding judge: Roberts. The chief justice’s role in impeachment is broadly described in the constitution. But there are few guidelines and little precedent indicating what duties, precisely, the chief justice can or might discharge… “I think a lot of this is going to depend on the role that the chief justice decides to play,” said Hilary Hurd ’20, a JD candidate at Harvard Law who has written about past impeachment trials. “We don’t know whether there’s going to be a tie on any particular motion. There could be, and we know from precedent that the chief justice is empowered to break a tie.”

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Pelosi is right: The GOP is out of excuses

As more evidence has come to light concerning President Trump’s withholding of U.S. aid to Ukraine and the concerns of members of the administration about its effect on national security and dubious legality, the decision by House Speaker Nancy Pelosi (D-Calif.) to delay sending the articles of impeachment to the Senate looks smarter by the day…Constitutional scholar Laurence Tribe tells me, “The documents made available in unredacted form for the first time destroy any remaining argument for waiting until mid-trial to decide whether witnesses like [Office of Management and Budget official Michael] Duffey, [Defense Secretary Mark T.] Esper, [Secretary of State Mike] Pompeo, [acting White House chief of staff Mick] Mulvaney and Bolton should be called, by subpoena if necessary, to testify at the forthcoming impeachment trial and whether key documents should be demanded from the White House, OMB, the State Department and the Pentagon.”

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Laurence Tribe: Ways not to think about the impeachment impasse

An article by Laurence TribeThe greatest chief justice of the United States, by common consent, was John Marshall. In McCulloch v. Maryland, the 1819 decision laying down the foundations of our government structure, Marshall wisely insisted that “we must never forget that it is a constitution we are expounding.” That meant, among other things, that we should not confuse the Constitution for an abstruse “legal code” intended to be deciphered only by specially ordained experts. Its basic structures and provisions must be interpreted so as to “be understood by the public,” in Marshall’s words, to be consistent with “the common affairs of the world.” In propounding their sometimes idiosyncratic constructions of the Constitution’s basic terms, a few current or former academic stars seem to have forgotten that most essential truth. Specifically, they would have us believe that, when the Constitution assigns to the House of Representatives “the sole Power of Impeachment,” those words “actually mean” that the House can “impeach” the president only by formally transmitting to the Senate its articles of impeachment, as English legislatures of the late Middle Ages transmitted them to the House of Lords.

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On GPS: Trump’s impeachment through the lens of history

Historian Jon Meacham, Harvard Law School Professor Annette Gordon-Reed and CNN Presidential Historian Tim Naftali discuss with Fareed what makes President Trump’s impeachment unique to past presidents. Naftali tells Fareed the House withholding the articles of impeachment from the Senate has never happened before in an impeachment crisis because this is the first time control of Congress has been split during an impeachment.

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Democrats, Citing White House Emails, Renew Calls for Impeachment Witnesses

Top Democrats on Sunday renewed their demands for witnesses to testify at President Trump’s impeachment trial, citing newly released emails showing that the White House asked officials to keep quiet over the suspension of military aid to Ukraine just 90 minutes after Mr. Trump leaned on that country’s president to investigate former Vice President Joseph R. Biden Jr. The emails, released late Friday by the Trump administration to the Center for Public Integrity, shed new light on Mr. Trump’s effort to solicit Ukraine to help him win re-election in 2020, the matter at the heart of the House’s vote on Wednesday to impeach him…At least one academic, Noah Feldman, a Harvard law professor who testified as an expert for Democrats during the impeachment inquiry, has argued that Mr. Trump will not be impeached until the articles are transmitted. Republicans have cited that position in their demands for Ms. Pelosi to move forward.

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White House May Try to Argue Impeached President Wasn’t Impeached: Report

Denial can be an ill-advised, if effective, strategy for temporary coping over the holidays, and it’s one that the White House is reportedly contemplating as part of its impeachment messaging. Like a spouse going off to “work” post-layoff, the White House may soon be arguing that everything is fine and nothing of particular note has happened in the past few weeks. According to CBS News, the Trump administration is considering arguing that Trump has not yet officially been impeached. The idea comes down to a technicality: Because House Speaker Nancy Pelosi has not transmitted the two articles of impeachment to the Senate, Trump officials may claim that the process has not yet been finalized in the House. The argument emerges from an op-ed by Harvard Law professor and House Judiciary Impeachment witness Noah Feldman. “If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president,” Feldman, who has endorsed Trump’s impeachment and removal from office, wrote in Bloomberg. “If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.”

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If Trump’s Impeached, Then Why Can’t a Senate Trial Start Now?

An op-ed by Noah Feldman: Call me old fashioned or naïve, but I think my job is to explain what the U.S. Constitution actually means, no matter who likes it or doesn’t. That led me to explain recently that under the Constitution as it was understood by the framers and as it still should be understood today, impeachment isn’t complete when the House of Representatives votes to impeach. Constitutionally, impeachment becomes official when the House sends word of that impeachment to the Senate, triggering a Senate trial. Impeachment was originally understood to take place when someone from the House formally impeached the president “at the bar of the Senate,” which meant a member of the House formally stated to the Senate that the president (or judge, or other officer) was impeached. That practice lasted from the late middle ages until 1912. Since then, the House has instead sent a written message to the Senate stating that the House “has impeached” the defendant, a message that triggers the trial procedures in the Senate.

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A Law Professor’s Provocative Argument: Trump Has Not Yet Been Impeached

Maybe President Trump has not been impeached after all, or at least not yet. Impeachment happens, according to Noah Feldman, a Harvard law professor, only when the House transmits the articles of impeachment to the Senate. So “technically speaking,” he said, “the president still hasn’t been impeached.” That idea has left much of the legal academy unconvinced, including Laurence H. Tribe, one of Professor Feldman’s colleagues at Harvard. “The argument is textually bizarre, historically inaccurate, structurally misguided and functionally misleading,” Professor Tribe said. Professor Feldman was one of three constitutional scholars to testify in favor of impeachment before the House Judiciary Committee this month.

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Impeachment live updates: Pelosi invites Trump to deliver State of the Union, potentially during his Senate trial; president lashes out at evangelical magazine

President Trump lashed out Friday at Democrats and an evangelical magazine that has called for his removal from office, as the timing and scope of his impeachment trial in the Senate remained in limbo and he prepared to head to Florida for the holidays. …Republicans have seized on a notion advanced by a law professor called by Democrats to testify during the impeachment inquiry that technically Trump would not be “impeached” if the House does not send articles of impeachment to the Senate. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial,” Harvard University law professor Noah Feldman wrote in a Bloomberg column on Thursday. “Both parts are necessary to make an impeachment under the Constitution … If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.” Feldman’s argument received pushback from other legal scholars, including Laurence Tribe, a constitutional law professor at Harvard. In a tweet on Thursday night, Tribe said Feldman is “making a clever but wholly mistaken point” about the possibility that Trump won’t be impeached. “Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period,” Tribe wrote.

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Laurence Tribe: ‘I’d be amazed’ if vulnerable GOP Senators vote against calling witnesses

Sen. Schumer said he’s hoping to get some Republican Senators to join him in asking for witnesses and documents in Trump’s impeachment trial. Laurence Tribe tells Lawrence O’Donnell that “the evidence supporting the impeachment articles is extremely strong” but adds that there are no good reasons not to hear from additional firsthand witnesses in the Senate trial and thinks it will be a hard sell from some vulnerable Republican Senators.

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Trump Isn’t Impeached Until the House Tells the Senate

An article by Noah FeldmanNow that the House of Representatives has voted to impeach President Donald Trump, what is the constitutional status of the two articles of impeachment? Must they be transmitted to the Senate to trigger a trial, or could they be held back by the House until the Senate decides what the trial will look like, as Speaker Nancy Pelosi has hinted? The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work. But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.

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Minow, Gordon-Reed probe what impeachment means and where it leads

To gain a better understanding of the issues in play following the House impeachment of President Donald Trump, the Harvard Gazette asked faculty and affiliates in history, law, politics, government, psychology, and media to offer their thoughts.

Harvard Law professor backs Pelosi move to keep articles of impeachment from Senate

Harvard Law Professor Laurence Tribe, a frequent critic of President Trump, argued Wednesday that House Speaker Nancy Pelosi, D-Calif., should not send the articles of impeachment against President Trump to the Senate and claimed that it was unconstitutional for the Senate to demand the articles “immediately.” “Senate rules requiring the House to ‘immediately’ present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules,” Tribe tweeted on Wednesday. “It’s up to the House when and how to prosecute its case in the Senate,” he added, just hours before House Democrats voted to approve two articles of impeachment.

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Harvard Law Professor Explains Why Pelosi’s Plan To Delay Impeachment Trial Is Brilliant

Harvard constitutional law professor Laurence Tribe on Thursday explained why House Speaker Nancy Pelosi’s (D-Calif.) decision to delay sending the articles of impeachment of President Donald Trump to the Senate is smart. Tribe, appearing on MSNBC’s “The Last Word,” told host Lawrence O’Donnell he believed Pelosi was handling the situation “just brilliantly.” In an op-ed for The Washington Post published Monday, Tribe suggested the House vote to impeach Trump over the Ukraine scandal, but then hold off on transmitting the articles. He predicted it would strengthen Senate Minority Leader Chuck Schumer’s (D-N.Y.) hand “in bargaining over trial rules” with Senate Majority Leader Mitch McConnell (R-Ky.) ― amid concerns of potential bias in a trial by Republicans ― because McConnell and Trump want “to get this whole business behind them.” McConnell has vowed to continue working with Trump’s defense team for the trial. O’Donnell on Thursday asked Tribe if this is “where you hoped we would be at this stage after passing the articles of impeachment?” “Exactly,” Tribe responded. “I hoped that my op-ed would encourage a dialogue generated by the fact that for the first time we have a majority leader who is going to be essentially the foreman of the jury and who promises to have his fingers crossed when he takes the oath.”

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What if the House doesn’t send the impeachment articles to the Senate? Idea championed by Harvard Law’s Laurence Tribe garners attention

Some House Democrats are pushing Speaker Nancy Pelosi to withhold the articles of impeachment that are expected to be approved by the House Wednesday, an idea that has been championed by Harvard Law School Professor Laurence Tribe. The notion of impeaching Trump but holding the articles in the House, which could delay a trial in the Senate for months, has gained traction among some of the political left… “Senate rules requiring the House to ‘immediately’ present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules. It’s up to the House when and how to prosecute its case in the Senate,” Tribe said.

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Alexander Hamilton Had Faith in a ‘Dignified’ Senate Trial

An article by Cass Sunstein: Senator McConnell, meet Alexander Hamilton. In the last weeks, a lot of people who followed the hearings in the U.S. House of Representatives became familiar with Hamilton’s definition of an impeachable offense as “the abuse of violation of some public trust.” But nearly everyone has neglected Hamilton’s brisk, essential discussion of the obligations of the U.S. Senate in impeachment trials – a discussion that casts a bright light on what Republicans and Democrats are obliged to do. The date was March 7, 1788. The occasion was the Federalist Papers – specifically, No. 65.

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Democrats can prevent a sham trial in the Senate if they hang tough

Senate Majority Leader Mitch McConnell (R-Ky.) had a plan to quickly dispose of the articles of impeachment just approved by the House: He would hold a two-week sham trial without any witnesses, and then the Senate Republican majority would acquit President Trump, despite the overwhelming weight of evidence showing that he is guilty as charged of abusing his power and obstructing Congress. But House Speaker Nancy Pelosi (D-Calif.), acting on an idea suggested by Harvard Law Professor Laurence H. Tribe in a Post op-ed, has thrown a spanner into the works by refusing to appoint impeachment managers until there is some guarantee of a fair trial in the Senate.

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Trump’s Impeachment Letter Gets Constitution Wildly Wrong

An article by Noah FeldmanImpeachment seems to have struck a nerve in President Donald Trump. On the eve of the House’s impeachment vote, he sent a six-page public letter to Speaker Nancy Pelosi, replete with self-justification, recrimination, and accusation. I will leave the psychological profiling to others. My job is to address the constitutional arguments, such as they are, in the extraordinary document. They may or may not be made again on the floor of the Senate in the upcoming trial; regardless, Trump has now made them part of the historical record. The constitutional talk starts right up top, in sentence two, in which Trump writes that “the impeachment represents an unprecedented and unconstitutional abuse of power by Democrat Lawmakers, unequaled in nearly two and a half centuries of American legislative history.”

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Mitch McConnell wants a show trial — but Democrats don’t have to give him one

Republicans have handed Democrats a political gift by making it clear they plan on acquitting President Trump after the most minimal Senate impeachment trial possible. The question is whether Democrats can seize this opportunity. In a divided Congress, House Democrats control one important weapon…they can withhold the articles of impeachment from the Senate — meaning that no impeachment trial can occur until the Republican Senate leadership agrees to some approximation of a fair and thorough process…Harvard Law professor Laurence Tribe recently tweeted that if McConnell “rejects these reasonable ground rules and insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath and withholding the Articles until the Senate reconsiders.” He later clarified in a follow-up tweet that “by ‘withholding’ the Articles I don’t mean not voting for them — I mean voting for them but holding off on transmitting them to the Senate.” Tribe elaborated on this idea further in an email to Salon, comparing this process to a corrupt trial in criminal court: “Imagine this scenario: A prosecutor about to obtain a grand jury indictment learns that the foreman of the trial jury (whose members, for purposes of this thought experiment, we’ll have to assume are known in advance, as is the case with the Senate though not in the typical criminal case) has threatened to let the accused decide how the trial will be conducted — and has intimated that it will be a ‘trial’ in name only, one orchestrated in close coordination with defense counsel. Other key jurors also announce that they don’t intend to listen to any evidence but have already made up their minds to acquit.”

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Trump Impeachment Is a Shot in the Arm for the Constitution

An article by Noah FeldmanThe House of Representatives’ historic vote to impeach President Donald Trump comes near the end of the president’s third tumultuous year in office — which is also the third year of the prolonged stress test he’s been giving to the U.S. Constitution. It’s an occasion to check in on the most basic question that can be asked in a democracy: What is the state of our Constitution? The short answer is that the Constitution is, so far, holding up in the face of the most extended challenge to its principles and norms that it has confronted since World War II. The impeachment itself is actually a significant improvement in the Constitution’s performance. It signals that at least half the legislative branch — the House — is now taking seriously its own responsibility to uphold the Constitution in the face of presidential contempt for it.

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Harvard law prof pitched the idea of withholding impeachment articles; is it constitutional?

After the U.S. House of Representatives voted Wednesday to impeach President Donald Trump, House Speaker Nancy Pelosi said the articles of impeachment may temporarily be withheld from the U.S. Senate. The idea of delaying—or even withholding transmittal to the Senate—has been pitched by Harvard law professor Laurence Tribe, who advised the House Judiciary Committee on the impeachment process, the Washington Postreports.

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Pelosi says House may withhold impeachment articles, delaying Senate trial

Moments after a historic vote to impeach President Trump, House Speaker Nancy Pelosi said that the House could at least temporarily withhold the articles from the Senate – a decision, she suggested, that could depend on how the other chamber chooses to conduct its trial on Trump’s removal…The notion has been most prominently advocated by Laurence H. Tribe, a Harvard Law School professor who has advised the House Judiciary Committee on the impeachment process. In a recent Washington Post op-ed, he wrote that “the public has a right to observe a meaningful trial rather than simply learn that the result is a verdict of not guilty.”

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Trump’s Ukraine shakedown

An article by Michael KlarmanOn Wednesday, the House Judiciary Committee will convene a panel of constitutional scholars to provide historical context for the impeachment inquiry and particularly the meaning of the Constitution’s impeachment standard of “treason, bribery, or high crimes and misdemeanors.” Were I appearing on that panel, this is what I would say: Much of the research for the statement derives from my work on “The Framers’ Coup: The Making of the United States Constitution.” On July 25, 2019, President Trump asked Ukrainian president Volodymyr Zelensky for “a favor.” Considering the evidence unearthed by the House Intelligence Committee in its totality, and keeping in mind that impeachment proceedings do not require us to suspend our common sense, it is clear that President Trump conditioned a much sought-after White House visit for the Ukrainian president, as well as the delivery of nearly $400 million appropriated by Congress for Ukrainian defense, on the Ukrainian government’s doing Trump two personal favors.

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