1/ In response to some replies (online and off), I should elaborate a bit: There are plenty of serious scholars/lawyers/etc. who've argued--and I agree!--that the conduct in question must have been plainly wrongful at the time the officer engaged in it. ...
2/ ... Ex post facto "crimes" are off-limits. It might even be--as Benjamin Curtis argued for Andrew Johnson (h/t @nikobowie, among others)--that such wrongfulness must in some sense be established by "law" ahead-of-time.
memory.loc.gov/cgi-bin/ampage…
memory.loc.gov/cgi-bin/ampage…
3/ As Curtis acknowledged, however, that law can be "written *or unwritten,* express *or implied.*” It doesn't have to be in a criminal statute (which is what I tweeted). Charles Black's canonical formulation remains the best IMHO: The alleged offense must: ...
4/ ... (1) be extremely serious; (2) in some way corrupt or subvert the political and governmental process; and (3) be "plainly wrong in [itself] to a person of honor, or to a good citizen, regardless of words on the statute books." [cont.]
lawfareblog.com/impeachable-of…
lawfareblog.com/impeachable-of…
5/ As Curtis & @nikobowie & Charles Black argued, the 10th and 11th Articles against Johnson (for attempting to bring disgrace & ridicule on Congress) didn't satisfy this test--they were, as Black wrote, "ridiculous" charges.
On the other hand, ...
senate.gov/artandhistory/…
On the other hand, ...
senate.gov/artandhistory/…
6/ ... a manifest breach of an officer's oath or constitutional duty *can* be an impeachable offense, even if the Constitution & U.S. Code don't specify "elements" of the particular breach in question. The history of congressional impeachment/convictions, esp. of judges, ...
7/ ... is consistent w/this understanding.
The major problem we're seeing now, however, as @benjaminwittes and I have written, is that the POTUS and many GOP members of Congress are trying to deny the wrongfulness ...
theatlantic.com/ideas/archive/…
The major problem we're seeing now, however, as @benjaminwittes and I have written, is that the POTUS and many GOP members of Congress are trying to deny the wrongfulness ...
theatlantic.com/ideas/archive/…
8/ ... of what always has been, and should remain, understood as "plainly wrong in [itself] to a person of honor, or to a good citizen."
@just_security
@just_security
