A good commentary on a pending constitutional crisis.

The writer is Noah Feldman, a law professor at Harvard and a Bloomberg columnist. He also clerked for Souter at SCOTUS.

Since we have been discussing the legal aspects of the impeachment inquiry and the White House has thumbed it’s nose at the House, “what now” rears its head.
Feldman touches on the history and the conundrums of impeachment.

I tried to find a link without a paywall, though NYT does normally have a certain number of free reads per month.

Good read though.

22 thoughts on “A good commentary on a pending constitutional crisis.

  1. Excellent piece by Feldman. He hits the ideas form both sides, but points out the huge weaknesses of the admins argument. This guy knows his stuff.

    As this plays out, it will be interesting to see how SCOTUS responds when called upon. I don’t see it going any other way except to them. And if they side with the House, the GOP will claim the court is partisan, which is more laughable than the letter Trump sent the other day.

    Liked by 1 person

    1. So, now we’re supposed to condemn Trump based on what you think he will do in a hypothetical situation?

      He has never defied the courts before, so why do you assume he will now. The better question is whether the House Democrats will defy the courts and will you accuse the court of being biased if they rule against Pelosi?

      Article I section 2 paragraph 5

      “5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

      The HOUSE has the power of impeachment, not the speaker of the House. She cannot act in place of the House as a whole.

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      1. “ condemn Trump based on what you think he will do in a hypothetical situation?” No need.

        He will be condemned by his own actions and words. When the blocked information comes out (and it will) there will be numerous heads rolling for the actions that they’ve taken. At some point even the GOP sycophants will see the writing on the wall and fight to turn on him first.

        Popcorn at the ready…

        Liked by 2 people

      2. “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States,”

        Note that it says the Senate, not Mitch McConnell. Supreme Court appointment by Obama comes to mind.

        (Reap and sow. Or is it sow and reap? Or maybe you “reap” your pants then “sew” them. Who knows. It makes as much sense as that letter from the White House.)

        But Nancy only called for an inquiry. Voting on the articles of impeachment, if any, needs a House vote.

        “I need the weapons, please. The barbarians are at the gate.”

        “I need a favor, though…”

        “Please, Godfather, anything, you know that.”

        The drama continues.

        Liked by 2 people

        1. I have repeatedly agreed that Garland should have had a long and leisurely hearing and then been rejected.

          But even so, McConnell using his position to stall a hearing for Garland is not even close to the same as Pelosi acting as though she spoke for the House of Representatives. Remember that it’s not just words, opening an impeachment inquiry allows for subpoenas outside the scope of normal oversight.

          That has legal effect.

          She cannot pretend she is the House.

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          1. @Tabor

            “ has legal effect” ??

            Unlike blocking a Supreme Court Appointment (he would have been confirmed).

            As to “not even close” ? Your perspective is badly skewed.

            Liked by 2 people

  2. Feldman’s article is certainly interesting, but all his reasoning is based on the assumption that the president committed an impeachable offense. That’s far from obvious as a matter of law and can only be established as a matter of fact by the House voting to pursue impeachment. Until that happens, Congressional subpeonas will remain unenforceable.

    Once the House votes to formalize the impeachment inquiry, it can litigate in the courts any subpeoenas the administration chooses to ignore. But it is far from obvious the courts would enforce any Congressional subpoenas where the president is denied due process. Even if we assume Congress has full authority to issue impeachment-related subpoenas, the courts have an interest of their own in preserving the rule of law, which might prevent them from allowing Congress to operate as a kangaroo court.

    All in all, I’d say Feldman’s reasoning isn’t as airtight as it seems. The arguments in the Trump letter may be far stronger than Feldman allows.

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    1. “That’s far from obvious as a matter of law”… The Constitution only calls out “high crimes and misdemeanors”. It is left to the House to decide what “hc&d” constitutes.

      You are wrong that House subpoenas are unenforceable. There is a piece in the Times this morning by Josh Chafetz, Law Professor @ Cornell and visiting @ Georgetown, that sites 2 things the House can do going forward. One is to zero out the budget for the Office of White House Counsel after the current CR runs out in November.

      The other is much more interesting: Arrest Giuliani. And hold him. (They can use Devin Nunes’s or Matt Gaetz’s office to hold him. They sound like they would prefer a broom closet in the West Wing than to legislate). According to the opinion piece, it is within the Constitutional authority of Congress to exercise such a power. From the piece: “Refusal to comply with a duly authorized subpoena from Congress constitutes contempt of Congress. Contempt of Congress is a crime, and there is a mechanism for referring such cases to federal prosecutors.”

      It might be a good strategy for Trump to get Rudy off of the TV and quieted.

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      1. RE: “It is left to the House to decide what “hc&d” constitutes.”

        Not really. The term has a specific Constitutional meaning and the Senate is free to dismiss any impeachment charges that fail to meet the definition. As a result, the House can’t just do whatever it wishes.

        As for the fantasy of arresting Guiliani, let them try. The president, in response, could just as easily and legally send over a brigade of Marines to free him.

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        1. And what exactly is the specific Constitutional meaning of “hc&d”? No one else seems to know, but apparently you do.

          You mean give the Marine Corps an UNLAWFUL order to attack the Article I body? He could give the order, but it would be the end of the career of which ever officer obeys it.

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          1. RE: “And what exactly is the specific Constitutional meaning of “hc&d”?”

            Wikipedia has an article on the subject, if you’d like to read it. You might consider, too, that if the House can make up any definition it wants, so can the Senate.

            As for the Marines, it’s in their charter to perform such duties as the president assigns.

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          2. @John Roberts.
            “As for the Marines, it’s in their charter to perform such duties as the president assigns.” Uh, not exactly. The Marines, as well as the other branches of the military, will not follow a unlawful order. Storming Congress to free a prisoner, or any other reason, except to FREE Congress form an attack, falls into that category.

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          3. RE: “The Marines, as well as the other branches of the military, will not follow a unlawful order.”

            I don’t think it would be unlawful for the executive to take custody of any prisoners Congress holds.

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      1. RE: “I think I’ll trust the legal judgement of a Harvard Law Professor over your Trump-blind opinion.”

        In that case, you should expand your horizons by reading Alan Dershowitz on this topic.

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        1. RE: “He blew his credibility a long time ago.”

          If the “legal judgement of a Harvard Law Professor” doesn’t actually mean anything to you, why did you even bring it up?

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          1. Dershwotiz will tell whatever an audience wants to hear based on the size of the check. If you haven’t noticed that you haven’t been paying attention to Dershowitz. Which doesn’t really surprise me.

            Like

          2. RE: “If you haven’t noticed that you haven’t been paying attention to Dershowitz. Which doesn’t really surprise me.”

            Childish. Your comment is out of line, Mr. Green.

            Like

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