Thanks for the question, @gtconway3d.
Trump's brief accurately cited Blackstone (see screenshot), but left out crucial context:
1) England had common law criminal offenses - which don't need statutes.
"Known and established law" in US precedent may include "abuse of power."
Trump's brief accurately cited Blackstone (see screenshot), but left out crucial context:
1) England had common law criminal offenses - which don't need statutes.
"Known and established law" in US precedent may include "abuse of power."
@gtconway3d 2) Even the legal historian who comes closest to supporting some (and only some) of this brief's arguments (the impressive @nikobowie) agrees that "misconduct in office is a common law offense."
See his screenshot with citations below.
H/t @EricColumbus
See his screenshot with citations below.
H/t @EricColumbus
@gtconway3d @nikobowie @EricColumbus 3) @nikobowie cites People v. Waterstone (Mich 2012) explaining the common law offense of "misconduct in office." It was a criminal prosecution, but it helps explain why Blackstone's "known and established law" would include the common law offense of "misconduct in office":
@gtconway3d @nikobowie @EricColumbus 4) If you're saying, "I thought the feds cannot punish common law crimes," remember US v. Hudson & Goodwin (1812) prohibits only fed courts.
In impeachmnet, House & Senate can rely on common law "high crimes."
Like misconduct/abuse of power.
@nikobowie:
In impeachmnet, House & Senate can rely on common law "high crimes."
Like misconduct/abuse of power.
@nikobowie:
@gtconway3d @nikobowie @EricColumbus 5) A crucial shift that expert @FOBowman3 documents but the Trump brief ignores:
English impeachment was often a criminal process (hence Blackstone's concerns).
But the American Framers deliberately *decriminalized* impeachment:
impeachableoffenses.net/2019/01/03/cri…
English impeachment was often a criminal process (hence Blackstone's concerns).
But the American Framers deliberately *decriminalized* impeachment:
impeachableoffenses.net/2019/01/03/cri…
@gtconway3d @nikobowie @EricColumbus @FOBowman3 6) Blackstone, in a different English context of impeachments w/ severe criminal punishment, protected officers w/ notice & lenity: "known & established law."
But our Constitution says "impeachment shall not extend further than to removal... & disqualification."
Different needs.
But our Constitution says "impeachment shall not extend further than to removal... & disqualification."
Different needs.
@gtconway3d @nikobowie @EricColumbus @FOBowman3 7) Some bad cherrypicking in the Trump brief:
Blackstone included "mal-administration" as a high misdemeanor.
The Trump brief notes the Framers considered but rejected this word as "too vague." True.
But the rest of the Framers' debate is terrible for Trump on "abuse of power."
Blackstone included "mal-administration" as a high misdemeanor.
The Trump brief notes the Framers considered but rejected this word as "too vague." True.
But the rest of the Framers' debate is terrible for Trump on "abuse of power."
@gtconway3d @nikobowie @EricColumbus @FOBowman3 8) On Abuse of Power as high crime/misdemeanor in the 18th-19th C's, see @_John_Mikhail powerhouse viral thread yesterday:
Edmund Burke, Hamilton, Randolph, Pres. Johnson's impeachment, and @gtconway3d's favorite (& @andrewkent33's), faithful execution.
Edmund Burke, Hamilton, Randolph, Pres. Johnson's impeachment, and @gtconway3d's favorite (& @andrewkent33's), faithful execution.
@gtconway3d @nikobowie @EricColumbus @FOBowman3 @_John_Mikhail @andrewkent33 9) My thread yesterday explaining that the Trump and @AlanDersh argument that "abuse of power" is not impeachable is basically moot, because the House clearly alleges constitutional and felony bribery step-by-step in Article I and in the House Report:
@gtconway3d @nikobowie @EricColumbus @FOBowman3 @_John_Mikhail @andrewkent33 @AlanDersh 10) See also @CBHessick, one of leading experts on common law crimes in American history, weighing in with a concise mini-thread with the same conclusions:
