Category: reason

The State Bar of Georgia has asked pro-Trump lawyer L. Lin Wood to undergo a psychiatric examination in response to complaints stemming from his role in promoting bizarre conspiracy theories about the presidential election. Wood is refusing, which may result in the suspension of his license to practice law.

By focusing on Wood’s mental state rather than his conduct, the state bar invites him to portray himself as a First Amendment martyr. A psychiatric evaluation “will violate my First Amendment right to free speech,” Wood told The Atlanta Journal-Constitution. “And if they do that and this harms me, then I will strongly consider suing them, and it will be a significant lawsuit.”

Millions of Americans, including former President Donald Trump and his personal lawyer, Rudy Giuliani, believe (or at least claim to believe) that the election was stolen through an elaborate scheme involving tricky voting machines and massive paper-ballot fraud. That extraordinary popular delusion can be understood as a political phenomenon driven by familiar human frailties such as tribalism and confirmation bias. But it is not in any meaningful sense a medical issue.

Psychiatry routinely treats weird things people say as evidence of mental illness. But if believing wild claims about election fraud were enough to qualify for a psychiatric label, most Republicans would be diagnosable. That premise is not just condescending and pseudoscientific but morally misleading, since it lets people off the hook for endorsing grave allegations with no basis in fact, whether sincerely or dishonestly.

If Trump’s election fantasy is caused by a mental disorder beyond his control, it would be manifestly unjust to hold him legally accountable for recklessly promoting it, as his impeachment aims to do. Likewise with Giuliani, who last week was hit with a $1.3 billion defamation lawsuit for repeatedly making false claims about the involvement of Dominion Voting Systems in the imaginary plot that supposedly denied Trump a second term. Ditto former Trump campaign lawyer Sidney Powell, whom Dominion sued on January 8.

“Sidney Powell is a crazy person,” the New York Post declared in a December 27 editorial urging Trump to “stop the insanity.” The Post was speaking figuratively. But if its description of Powell is taken literally, meaning that her conspiracy mongering is a product of mental illness, shouldn’t her behavior elicit sympathy and “treatment” rather than anger and lawsuits?

Maybe Wood is a special case. Even in the company of florid fabulists such as Trump, Giuliani, and Powell, he stands out as a purveyor of outlandish allegations. While Trump called Chief Justice John Roberts (along with the rest of the Supreme Court) cowardly and incompetent for turning away lawsuits challenging the election results in battleground states, he did not join Wood in trying to implicate Roberts in murder and pedophilia. And while Trump castigated Vice President Mike Pence for failing to block congressional affirmation of the election results (a power the vice president does not actually have), Wood suggested that Pence should be executed for treason. “Get the firing squads ready,” Wood said in a January 7 Parler post. “Pence goes FIRST.”

Around the same time, Wood was permanently banned from Twitter. His online comments recently prompted one of his best-known clients, Nicholas Sandmann, to terminate their relationship. A Delaware judge this month barred Wood from representing former Trump adviser Carter Page. “The conduct of Mr. Wood, albeit not in my jurisdiction, exhibited a toxic stew of mendacity, prevarication, and surprising incompetence,” Judge Craig Karsnitz wrote. He called an election lawsuit that Wood filed in Georgia “textbook frivolous litigation” and said a complaint that Wood filed in Michigan “would not survive a law school civil procedure class.”

Karsnitz also noted Wood’s threat against Pence and his claims about Roberts, which the judge called “too disgusting and outrageous to repeat.” More generally, he said Wood’s promotion of baseless election-fraud claims had helped incite the Capitol riot—the same charge that Trump will face when the Senate takes up his impeachment this week.

Such behavior could be cause for disciplinary action, including disbarment. Among other things, the Georgia state bar’s rules prohibit “professional conduct involving dishonesty, fraud, deceit or misrepresentation.” But it’s not clear why a  psychiatrist’s opinion is relevant in determining whether Wood violated the bar’s code of professional conduct. Paula Frederick, the state bar’s general counsel, says the demand that Wood be evaluated by a psychiatrist is based on the concern that he “may be impaired or incapacitated.” That concern, in turn, is based on the odd, inflammatory stuff Wood has said.

Wood described his comments about Pence as “rhetorical hyperbole.” But like Trump’s incendiary pre-riot speech, which did not legally qualify as incitement but nevertheless led to his impeachment, Wood’s talk of executing Pence was, at best, grossly irresponsible given the political context. And his defamatory charges against Roberts, which he claimed were based on “information from [a] reliable source,” clearly did not qualify as mere rhetoric. Crazy tweets aside, Wood’s conduct in post-election litigation is obviously relevant in evaluating his professional behavior to the extent that it involved “dishonesty, fraud, deceit or misrepresentation.”

By making an issue of Wood’s mental health, the state bar allows him to complain that it is using psychiatry to punish dissent. “I have done nothing wrong,” he said in a Telegram post last week. “I have only exercised my right of free speech. I will not allow the State Bar to persecute me for doing so and thereby violate my Constitutional rights.”

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From my Newsweek op-ed Friday:

The second impeachment of Donald Trump raises an important constitutional question that no court has yet addressed—whether the Constitution’s impeachment provisions apply not just to sitting officials, but to former ones.

The Constitution provides that the impeachment process shall apply to “all civil Officers of the United States,” suggesting that those subject to it must actually hold office. But the possible trial of Trump has generated a swirl of arguments to the contrary. Last week, more than 150 law professors signed a letter arguing that even private citizens who had once held office may be impeached and then tried by the Senate. Perhaps influenced by such academic authority, this week the Senate rejected by a 55-45 margin a resolution concluding that such a trial would be unconstitutional. The arguments in favor of impeaching former officials are weak—and those to the contrary is at least compelling enough to not deprive a private citizen of his right to a jury trial.

Supporters of after-office impeachment have attempted to point to historical precedents—but there are no such precedents. In the 230-year history of the U.S. Constitution, there have been zero impeachments or trials of former presidents, and only one of any former “civil officer”—145 years ago.

Historical practice can be a guide to understanding the Constitution, but the Supreme Court has held that it takes a lot more than an isolated historical episode to show that something is constitutionally acceptable. Moreover, there is no reason to ignore the glaring lack of impeachments of the countless former office holders who may have deserved it. Indeed, since government officials spend more time out of office than in it, if subsequent impeachment were constitutional, one would expect to see it more often than impeachment of sitting officials.

The primary argument in favor of using the impeachment process against former office holders is policy-based. Because the sanction of being barred from office can only be applied after a Senate conviction, an official could “undermine” the impeachment mechanism “simply by resigning one minute before the Senate’s final conviction vote.” Yet a last-minute resignation is far from an avoidance of accountability. Resignation removes the official, and does so more surely than a Senate trial. As can be seen in the case of Richard Nixon, it does little or nothing to remove the public stain of impeachment proceedings, which the Framers recognized was perhaps their greatest effect. Moreover, in the case of presidents, leaving office immediately opens them up to criminal prosecution.

While barring someone from office is one of the punishments available in impeachment, nothing suggests it is so essential, or the strategic resignation scenario so likely, that being able to pursue people when out of office is essential to the impeachment power. It would be like prosecuting dead people for crimes, and punishing their estates with fines, because otherwise people could “escape accountability” by committing suicide.

Conjuring up the exceedingly speculative case of an office holder who resigns from office “one minute” before a conviction only highlights how far-fetched the broader argument is. Even if concern about strategic resignation were valid, it would not mean that the Senate should be able to try people who did not resign to avoid responsibility. Trump left office not through any gamesmanship, but at the natural end of his term. It was the Senate, not Trump, that strategically choose to delay the start of the process until he left office.

Read the rest of the op-ed at this link.

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Thursday, Senator Mike Lee, himself an accomplished lawyer, published an op-ed concluding,

Although it is a close question, and the relevant constitutional text is susceptible to multiple interpretations, the most natural reading leads me to conclude that the Senate should not conduct an impeachment trial where, as we are facing today, the person impeached is no longer in office.

Article 1, Section 3, Clause 6 provides that “when the President of the United States is tried, the Chief Justice shall preside.” And Article 2, Section 4 mirrors this formulation, stating that only the “president, Vice President, and all civil Officers of the United States” may be impeached.

These sections do not say that “a” president or “a former president” or “anyone who has served in that office” may be impeached. It says “the” president. There is a difference between “the” president and “a” president, and there can be no dispute that “the” president is not Donald Trump but Joe Biden. The former remained in office, and on that basis, was subject to impeachment until noon on Jan. 20, 2021. The latter was not subject to impeachment until that very same moment but now is.

Our own Prof. Eugene Kontorovich (George Mason) also published an op-ed Friday reaching the same conclusion (I hope he’ll post an excerpt from it himself later today), and Prof. Philip Bobbitt (Columbia) had a similar post Wednesday at Lawfare, which begins:

Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol. Nevertheless, the Senate is making a mistake in holding a trial of the article of impeachment, which is scheduled to begin the week of Feb. 8, after the president leaves office. Doing so subverts the law in an effort to punish someone who subverted the law.

On the other hand, back in 2001, Prof. Brian Kalt (Michigan State) presciently wrote a whole law review article on the issue, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, which makes me especially pleased to pass along his response to Sen. Lee’s op-ed (I would have happily posted the entirety of Sen. Lee’s op-ed as well, but was reluctant to do that, given that it had already been published elsewhere):

Sen. Lee starts by saying that Article II, § 4 “stat[es] that only the ‘president, Vice President, and all civil Officers of the United States’ may be impeached.” (That’s not what § 4 states, to be precise, but it can be interpreted this way.) Lee contends that this means only “the” president may be impeached, not anyone who was ever president. But Donald Trump was president when the House impeached him on January 13. Lee does not—and cannot—argue that the House lacked the power to do this. And Article I, § 3, cl. 6 gives the Senate exclusive power to “try all impeachments,” without saying anything to restrict the timing of the trial. Lee does not address this either. More broadly, he does not engage the distinction between the timing of the offense and the timing of the trial.

He also ignores evidence other places that the Constitution regulates the possible consequences of officials’ actions. There too, the key is that the official was in office at the time of the offense, not at the time of the trial. For instance, the Speech and Debate Clause makes “senators and representatives” legally immune for their legislative acts—a protection that covers ex-senators and ex-representatives for acts they performed in office. Similarly, “members” can be punished by each house for disorderly behavior, and this power has been used to punish ex-members for things they did as members.

Lee next turns to Article I, § 3, cl. 7, which says that impeachment judgments “shall not extend further than to removal from office, and disqualification to hold [future office].” Lee says: “I read this clause—in particular, the use of the conjunctive ‘and’ rather than the disjunctive ‘or’—to establish removal as a condition precedent to the remedy of disqualification. If a public official is subject to removal through the impeachment process, then he or she is subject to disqualification. If not, then the opposite is true.”

Don’t be thrown off by the lawyerly lingo of conjunctive, disjunctive, and conditions precedent; just read the clause. It provides an outer limit for impeachment consequences: the Senate can’t go further than X-plus-Y. The point of the clause is that Senate cannot do Z, not that it must do X before it can do Y. (Separately, Article II, § 4 requires removal when applicable, though Lee does not mention that. In any case, that requirement is best read as keeping convicts out of office, not as protecting offenders from disqualification if they leave office first.)

The correct reading of Clause 7 becomes even more obvious when one looks at the whole clause. The clause’s second half, which Lee omits, provides that impeachment convicts are still subject to whatever consequences the criminal law might dole out. This was a departure from British impeachment, in which impeachment cases were not separated from the criminal process in this way. In Britain, impeachment could result in the full range of criminal punishments. The American version needed to make clear that only removal and disqualification could be leveled; fines, prison, or death would not be on the table.

Lee’s venture into constitutional history is short. He says that the Framers “chose a design that was different than the English impeachment system, under which any private citizen could be impeached.” But this is still a non sequitur, given that Trump was impeached when he was president, for his actions as president. And it ignores the practice of states. Around the time the Constitution was drafted and shortly afterwards, multiple states impeached and convicted ex-officials for things they had done in office. Some did so on the basis of state constitutional language that tracked the federal constitution. The Framers understood this possibility and did not explicitly exclude it.

While removal was important, the Framers also intended impeachment to serve other functions. Impeachment would also deter public misconduct and, failing that, provide a forum to investigate perpetrators and hold them accountable. It would be odd if the Framers designed the impeachment system so that deterrence and accountability were no longer an option in the final weeks of a president’s term. Indeed, it’s hard to imagine Senator Lee refusing to try a Democratic president impeached in his last week in office for, say, granting a mass pardon to all Antifa members. But these structural considerations are absent from his discussion.

Finally, Lee considers two precedents. He points to how the Senate dismissed the impeachment case against ex-Senator Blount in 1798—but skips over all evidence that the dismissal was because of the “senator” part and not the “ex” part.

Next is the impeachment and trial of ex-secretary of war William Belknap in 1876. Lee admits that the Senate voted in favor of jurisdiction, but stresses that Belknap was ultimately acquitted. Lee is right that Belknap’s acquittal does weaken the precedent somewhat, but he ignores that Belknap, unlike Trump, had left office before even being impeached—and thus that the case for jurisdiction in Trump’s case is stronger.

Lee also leaves out some interesting partisan dynamics. The Republican Belknap was impeached unanimously by the House despite having already left office. Republicans had a solid majority in the Senate and a party-line vote would have been strongly against jurisdiction. But rather than toss the case, the Republican Senate held a serious, month-long debate. In the end, 13 of the 39 Republicans senators voted that there was jurisdiction, and the trial proceeded for two more months.

It is unlikely that the Senate will have a similarly serious debate this time. It is also unlikely that a similar proportion of Republicans will vote against their partisan interest. But it is worth noting that if they did, that same proportion (when rounded) would yield 17 Republican votes today—exactly the number needed to attain a two-thirds majority to convict.

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FIRE, the Foundation for Individual Rights in Education, a most worthy organization, is seeking a legal defense fund director and a legal defense fund fellow.

FIRE has employees from across the political spectrum who share its commitment to defending freedom of speech and due process on university campuses.

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Prof. McConnell passes along this follow-up, responding to Prof. Michael Ramsey at The Originalism Blog:

The Volokh Conspiracy recently published my view that, based on the explicit text of the Constitution, officers who have been impeached by the House of Representatives while in office can be tried by the Senate even if they have left office in the meantime. The public debate has been over whether the House has power to impeach a former officer, but that is irrelevant to the current situation. The House impeached President Trump on January 13, 2021, one week before his term expired. No one has suggested any problem with the timing of that resolution. If the Senate has power to try “all impeachments,” as Article I, Section 3, Clause 6 says, it has power to try the Trump impeachment. There seemed to be no textual counter-argument. Or so I argued.

It turns out there is a textual counter-argument. Michael Ramsey contends in The Originalism Blog, that under founding-era practice, “a President is not impeached (under the Constitution’s original meaning) until the Articles of Impeachment are delivered to the Senate.” Other distinguished scholars – Andrew Hyman, Noah Feldman, and Keith Whittington – have made essentially the same argument. They support this argument on the basis of historical practice, in which the House would pass a resolution authorizing its managers to “impeach” the officer before the Senate, implying that impeachment does not occur until they make the formal accusation and thus begin the prosecution. Only starting in 1912 has the House instead passed resolutions impeaching the officer, and then communicating to the Senate that it has done so. Ramsey et al. contend, based on originalist interpretive principles, that the original understanding must prevail over a subsequent change in practice.

I find this argument unpersuasive. First, it cannot be squared with Article I, Section 2, Clause 5, which states: “The House of Representatives . . . shall have the sole power of Impeachment.” This clearly indicates that it is the House that impeaches as a constitutional matter, not the managers. The House, as a body, can act only by means of passing a resolution. That happened on January 13.

Second, there is no reason to think the prior practice reflected a judgment that the constitutional term “impeachment” means presentation of the charges to the Senate, rather reflecting a choice of form. At most, it suggests that the House may delegate its power of impeachment to its managers, not that the constitutional term “impeachment” necessarily refers to the presentation of charges by the managers.

Now, if in any particular proceeding the House frames its resolution in such a way as to postpone its legal effect until some future date, such as when the managers present charges to the  Senate, then presumably the impeachment would not take legal effect until then. (By analogy, the House presumably could pass a resolution that “effective next Wednesday Jane Doe is impeached.”) That may have been what happened in the early impeachments on which Ramsey et al. rely. But that is not what happened on January 13. On January 13, the House passed a resolution stating unequivocally “[t]hat Donald  John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following articles of impeachment be exhibited to the United States Senate.”

In sum: the Constitution vests the power to impeach in the House as a body, not in the managers. The House acts by passage of a resolution. Unlike its practice in the founding era, the 117th House passed a resolution on January 13 stating that President Trump “is impeached.” There is no good reason to say that the House, which has “sole power” over this matter, does not impeach when it passes a resolution saying the officer is impeached. That means Mr. Trump was impeached while still in office, and accordingly the Senate has the power to try the impeachment.

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