Category: reason

Does the Chief Justice Preside over an Ex-President’s Impeachment Trial?

President Trump has been impeached, and the trial seems unlikely to begin until he is no longer the President. There is some dispute about whether the Senate can try an impeachment of an ex-official. But it has done so in the past, most famously in the case of ex-Secretary of War William Belknap, and for reasons adequately covered by others I think that is proper.

If it does, there comes a secondary procedural question. Who presides? According to Article I, Section 3, normally “The Vice President of the United States shall be President of the Senate,” and in her absence, other Senators preside. But “When the President of the United States is tried, the Chief Justice shall preside.” Should we think of the trial of ex-President Trump as the trial of a President?

I started reading through the Belknap Senate trial and quickly came across conflicting clues. It seems to me that the answer to this question depends on the precise theory under which ex-Presidents can be impeached, and both theories were mentioned during the Belknap trial.

One theory is this. Technically, there is no restriction on who may be impeached and tried by the Senate. Article II says 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,” but that provision technically establishes one of the consequences of impeachment—removal—it is not the impeachment power. The impeachment power is contained in Article I, and says “The House of Representatives … shall have the sole power of impeachment” and “The Senate shall have the sole power to try all impeachments.” That is the impeachment power, with no limit on who can be impeached.

The other theory is this. Impeachments of ex-officers are permitted because impeachments of officers can’t be defeated by the resignation or departure of the officer. Otherwise, officers could evade the Senate’s judgment, and most importantly, could evade the Senate’s power to impose disqualification from future offices, a power expressly mentioned in the Constitution. This theory might not extend to the impeachment of private citizens, etc., but it would allow impeachment of ex-officers as an extension of the power to impeach and disqualify officers.

I found people articulating both theories within the first few pages of the Belknap trial. Some speakers argued that the impeachment power had an unlimited domain of defendants, and that is why Belknap could be tried. Others argued that the trial “related back” to the original House inquest against Belknap, when he was an officer. (The idea of “relation back” may be familiar to modern litigators.)

On the first theory, the Chief Justice need not preside. An ex-President being tried is not the President, and the Senate’s jurisdiction does not depend on his former official status. On the second theory, I think the Chief Justice should preside. If the premise of the Senate’s jurisdiction is that it “relates back” to the original impeachment of the President qua President, then the President’s procedural protections should be triggered.

However, I do not know which is the correct theory, nor do I know which theory the Senate will adopt if it proceeds with the trial. Perhaps this question is resolved later in parts of the Belknap trial I haven’t gotten to. But it seems to me that figuring out the correct theory helps us figure out how the trial must proceed.

A final thought: I am not positive this works, but one way to avoid this question would be a theory that the Senate has the power to designate the Chief Justice as the presiding officer regardless of whether the President is being tried. Perhaps if the Senate and the Chief Justice both agree to it, the Chief Justice could preside by consent regardless of whether the Clause mandates it. That arrangement would allow the Senate to dodge this question.

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Does the Chief Justice Preside over an Ex-President’s Impeachment Trial?

President Trump has been impeached, and the trial seems unlikely to begin until he is no longer the President. There is some dispute about whether the Senate can try an impeachment of an ex-official. But it has done so in the past, most famously in the case of ex-Secretary of War William Belknap, and for reasons adequately covered by others I think that is proper.

If it does, there comes a secondary procedural question. Who presides? According to Article I, Section 3, normally “The Vice President of the United States shall be President of the Senate,” and in her absence, other Senators preside. But “When the President of the United States is tried, the Chief Justice shall preside.” Should we think of the trial of ex-President Trump as the trial of a President?

I started reading through the Belknap Senate trial and quickly came across conflicting clues. It seems to me that the answer to this question depends on the precise theory under which ex-Presidents can be impeached, and both theories were mentioned during the Belknap trial.

One theory is this. Technically, there is no restriction on who may be impeached and tried by the Senate. Article II says 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,” but that provision technically establishes one of the consequences of impeachment—removal—it is not the impeachment power. The impeachment power is contained in Article I, and says “The House of Representatives … shall have the sole power of impeachment” and “The Senate shall have the sole power to try all impeachments.” That is the impeachment power, with no limit on who can be impeached.

The other theory is this. Impeachments of ex-officers are permitted because impeachments of officers can’t be defeated by the resignation or departure of the officer. Otherwise, officers could evade the Senate’s judgment, and most importantly, could evade the Senate’s power to impose disqualification from future offices, a power expressly mentioned in the Constitution. This theory might not extend to the impeachment of private citizens, etc., but it would allow impeachment of ex-officers as an extension of the power to impeach and disqualify officers.

I found people articulating both theories within the first few pages of the Belknap trial. Some speakers argued that the impeachment power had an unlimited domain of defendants, and that is why Belknap could be tried. Others argued that the trial “related back” to the original House inquest against Belknap, when he was an officer. (The idea of “relation back” may be familiar to modern litigators.)

On the first theory, the Chief Justice need not preside. An ex-President being tried is not the President, and the Senate’s jurisdiction does not depend on his former official status. On the second theory, I think the Chief Justice should preside. If the premise of the Senate’s jurisdiction is that it “relates back” to the original impeachment of the President qua President, then the President’s procedural protections should be triggered.

However, I do not know which is the correct theory, nor do I know which theory the Senate will adopt if it proceeds with the trial. Perhaps this question is resolved later in parts of the Belknap trial I haven’t gotten to. But it seems to me that figuring out the correct theory helps us figure out how the trial must proceed.

A final thought: I am not positive this works, but one way to avoid this question would be a theory that the Senate has the power to designate the Chief Justice as the presiding officer regardless of whether the President is being tried. Perhaps if the Senate and the Chief Justice both agree to it, the Chief Justice could preside by consent regardless of whether the Clause mandates it. That arrangement would allow the Senate to dodge this question.

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Review: Promising Young Woman

loder-promising young woman

The attraction of old-school rape-revenge films like The Last House on the Left and I Spit on Your Grave wasn’t the rape, it was the over-the-top revenge—the chain-sawing, the electrocuting, the inventive penis-severings. None of these things crop up in Promising Young Woman, a debut feature by English writer-director Emerald Fennell. This is too bad, because what we have here is a pretty good picture that could have used some cheap thrills and righteous violence.

The movie has several things to recommend it, starting with a marvelously chilled-out star performance by Carey Mulligan as the rape-avenger Cassie Thomas. Cassie and her best friend Nina Fisher were once in med school together, but both dropped out after Nina was raped at a party and subsequently couldn’t find anyone to believe her harrowing tale. Nina is long-dead now—possibly a suicide—but Cassie, who currently works as a waitress in a coffee shop, is continuing her years-long campaign to visit payback upon her late friend’s rapist—and, in the process, to also put the fear of God into other men who make a practice of preying on women.

Cassie does this by visiting a different nightclub every weekend, pretending to be blind drunk, and then going home with the first guy who comes on to her. Back at the guy’s apartment, she shrugs off her drunk act and…well, you might hope to see her feasting on the entrails of these creeps, but no. What she actually does, in the one confrontation we witness, is deliver a blast of sarcasm (“You woke me up before putting your fingers inside me—that was sweet”) and then lecture the creep about how he should change his ways. This seemed to me to be insufficiently savage.

Cassie also lights up three people with tangential connections to Nina’s rape. One of them is a lawyer named Jordan (Alfred Molina in a quietly moving performance), who was responsible for destroying Nina’s credibility and is now wracked with shame about it. Cassie also confronts her old med-school dean, Elizabeth Walker (Connie Britton), who dismissed Nina’s rape charge back in the day, and now doesn’t even remember her (although she does remember Nina’s rapist, a cool guy named Al Monroe). “What would you have me do,” Walker asks Cassie, “ruin a young man’s life every time we heard an accusation like this?” (A later creep describes this possibility as “every guy’s worst nightmare, getting accused like that.” To which Cassie replies, “Can you guess what every woman’s worst nightmare is?”

Cassie also approaches an old classmate named Madison (Alison Brie), who didn’t believe Nina’s rape story at the time either, but who subsequently came into possession of a video of the assault taken by one of Monroe’s friends. Madison gives this video to Cassie, who comes up with a gratifyingly nasty use for it.

The movie isn’t a feminist tract, but it makes all the familiar and undeniable points. After kicking off with a montage of male crotches (clothed), it shows us a trio of men in a bar complaining about the fact that they’re no longer allowed to hire strippers for office parties and—casting an eye at a wasted woman passing out on a nearby banquette—repeating the well-known truth that she must be “just askin’ for it.” The director’s story makes clear allusions to some real-life cases, like the 2015 Stanford University rape in which the perpetrator, a promising young man named Brock Turner, got off with serving three months in jail, and the 2014 University of Virginia rape case that was turned into a cover story by Rolling Stone magazine and was later revealed to be a hoax. (Alluding to this event would seem to undermine the movie’s aim).

There’s one good guy in the film—another med-school friend of Cassie’s whose name is Ryan (Bo Burnham, radiating charm). He seems likely to rescue Cassie from her obsession with Nina’s rape and before long they start a relationship. (We see them in one of those old-fashioned young-lovers montages dancing around a pharmacy to the strains of the Paris Hilton song “Stars Are Blind.”) Could there be true love in the offing? By the time the very dark ending arrives, we realize that this is a movie that wasn’t designed to reward anyone’s high hopes.

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Review: Promising Young Woman

loder-promising young woman

The attraction of old-school rape-revenge films like The Last House on the Left and I Spit on Your Grave wasn’t the rape, it was the over-the-top revenge—the chain-sawing, the electrocuting, the inventive penis-severings. None of these things crop up in Promising Young Woman, a debut feature by English writer-director Emerald Fennell. This is too bad, because what we have here is a pretty good picture that could have used some cheap thrills and righteous violence.

The movie has several things to recommend it, starting with a marvelously chilled-out star performance by Carey Mulligan as the rape-avenger Cassie Thomas. Cassie and her best friend Nina Fisher were once in med school together, but both dropped out after Nina was raped at a party and subsequently couldn’t find anyone to believe her harrowing tale. Nina is long-dead now—possibly a suicide—but Cassie, who currently works as a waitress in a coffee shop, is continuing her years-long campaign to visit payback upon her late friend’s rapist—and, in the process, to also put the fear of God into other men who make a practice of preying on women.

Cassie does this by visiting a different nightclub every weekend, pretending to be blind drunk, and then going home with the first guy who comes on to her. Back at the guy’s apartment, she shrugs off her drunk act and…well, you might hope to see her feasting on the entrails of these creeps, but no. What she actually does, in the one confrontation we witness, is deliver a blast of sarcasm (“You woke me up before putting your fingers inside me—that was sweet”) and then lecture the creep about how he should change his ways. This seemed to me to be insufficiently savage.

Cassie also lights up three people with tangential connections to Nina’s rape. One of them is a lawyer named Jordan (Alfred Molina in a quietly moving performance), who was responsible for destroying Nina’s credibility and is now wracked with shame about it. Cassie also confronts her old med-school dean, Elizabeth Walker (Connie Britton), who dismissed Nina’s rape charge back in the day, and now doesn’t even remember her (although she does remember Nina’s rapist, a cool guy named Al Monroe). “What would you have me do,” Walker asks Cassie, “ruin a young man’s life every time we heard an accusation like this?” (A later creep describes this possibility as “every guy’s worst nightmare, getting accused like that.” To which Cassie replies, “Can you guess what every woman’s worst nightmare is?”

Cassie also approaches an old classmate named Madison (Alison Brie), who didn’t believe Nina’s rape story at the time either, but who subsequently came into possession of a video of the assault taken by one of Monroe’s friends. Madison gives this video to Cassie, who comes up with a gratifyingly nasty use for it.

The movie isn’t a feminist tract, but it makes all the familiar and undeniable points. After kicking off with a montage of male crotches (clothed), it shows us a trio of men in a bar complaining about the fact that they’re no longer allowed to hire strippers for office parties and—casting an eye at a wasted woman passing out on a nearby banquette—repeating the well-known truth that she must be “just askin’ for it.” The director’s story makes clear allusions to some real-life cases, like the 2015 Stanford University rape in which the perpetrator, a promising young man named Brock Turner, got off with serving three months in jail, and the 2014 University of Virginia rape case that was turned into a cover story by Rolling Stone magazine and was later revealed to be a hoax. (Alluding to this event would seem to undermine the movie’s aim).

There’s one good guy in the film—another med-school friend of Cassie’s whose name is Ryan (Bo Burnham, radiating charm). He seems likely to rescue Cassie from her obsession with Nina’s rape and before long they start a relationship. (We see them in one of those old-fashioned young-lovers montages dancing around a pharmacy to the strains of the Paris Hilton song “Stars Are Blind.”) Could there be true love in the offing? By the time the very dark ending arrives, we realize that this is a movie that wasn’t designed to reward anyone’s high hopes.

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Meddling in the Ballot Box

meddling

As long as there have been American elections, foreign powers have sought to influence them. George Washington and John Adams were targeted by French revolutionaries during 1796, and Nazi Germany tried to undermine President Franklin Delano Roosevelt’s reelection campaigns.

Dov H. Levin, a professor of international relations at the University of Hong Kong and the author of Meddling in the Ballot Box: The Causes and Effects of Partisan Electoral Interventions, accepts as fact that powerful governments will intervene in other nations’ elections for strategic purposes. America has certainly done plenty meddling of its own, mostly during the Cold War (significant interventions in Argentina and Guatemala get special attention here), with a mixed track record of success.

Yet intervening in foreign elections is less common than you might expect. The risks are high and the rewards often elusive. Trying to futz with an election is unnecessary if you can rely on the usual diplomatic channels to get what you want, Levin concludes.

Still, even marginal influence can have an effect. Without the media attention generated from leaked emails and other documents attributed to Russian interference, Levin believes Hillary Clinton would have won the 2016 popular vote by an extra 2 percent over Donald Trump—enough to win the key states of Michigan, Pennsylvania, and Wisconsin, along with a few others. Though Russia’s meddling “has frequently been described in the public discourse utilizing various synonyms to the word ‘unprecedented,'” Levin writes, “that is far from being the case.”

The 2020 election had plenty of weird twists and controversial turns, but thankfully the controversies seem to be largely domestic. There’s something unsettling about foreign election meddling—which can be particularly destabilizing if it reduces public trust in the ability of election officials to run clean contests, even if it is also inevitable.

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Meddling in the Ballot Box

meddling

As long as there have been American elections, foreign powers have sought to influence them. George Washington and John Adams were targeted by French revolutionaries during 1796, and Nazi Germany tried to undermine President Franklin Delano Roosevelt’s reelection campaigns.

Dov H. Levin, a professor of international relations at the University of Hong Kong and the author of Meddling in the Ballot Box: The Causes and Effects of Partisan Electoral Interventions, accepts as fact that powerful governments will intervene in other nations’ elections for strategic purposes. America has certainly done plenty meddling of its own, mostly during the Cold War (significant interventions in Argentina and Guatemala get special attention here), with a mixed track record of success.

Yet intervening in foreign elections is less common than you might expect. The risks are high and the rewards often elusive. Trying to futz with an election is unnecessary if you can rely on the usual diplomatic channels to get what you want, Levin concludes.

Still, even marginal influence can have an effect. Without the media attention generated from leaked emails and other documents attributed to Russian interference, Levin believes Hillary Clinton would have won the 2016 popular vote by an extra 2 percent over Donald Trump—enough to win the key states of Michigan, Pennsylvania, and Wisconsin, along with a few others. Though Russia’s meddling “has frequently been described in the public discourse utilizing various synonyms to the word ‘unprecedented,'” Levin writes, “that is far from being the case.”

The 2020 election had plenty of weird twists and controversial turns, but thankfully the controversies seem to be largely domestic. There’s something unsettling about foreign election meddling—which can be particularly destabilizing if it reduces public trust in the ability of election officials to run clean contests, even if it is also inevitable.

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Brickbat: Professional Courtesy

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Norwalk, Connecticut, police officers Michel Dimeglio and Sara Laudano have been charged with larceny and reckless endangerment after their supervisors found them together in a hotel room while both were on duty. The department had been looking for Laudano after dispatch could not reach her on the radio or on her cellphone. The department’s vehicle location system found her patrol car in the hotel parking lot. The department said the two “were not in a condition to respond to calls for service.”

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Brickbat: Professional Courtesy

hotelsex_1161x653

Norwalk, Connecticut, police officers Michel Dimeglio and Sara Laudano have been charged with larceny and reckless endangerment after their supervisors found them together in a hotel room while both were on duty. The department had been looking for Laudano after dispatch could not reach her on the radio or on her cellphone. The department’s vehicle location system found her patrol car in the hotel parking lot. The department said the two “were not in a condition to respond to calls for service.”

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