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Jed Shugerman Profile picture
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17 Jan, 4 tweets, 3 min read
Can an ex-president be tried by the Senate? The Constitution’s text may not be clear, but the 1787 Convention indicates the answer is yes:
Shugerblog, "The Originalist Case for Impeaching Ex-Presidents: Mason, Randolph & G.Morris"
shugerblog.com/2021/01/16/the…
A reply to @judgeluttig (link below) & @rossgarber.
Adding to textual & historical arguments by @steve_vladeck @ProfBrianKalt @FOBowman3 @kewhittington. @jacklgoldsmith Sorry if someone else noted Mason, Randolph, Gouv. Morris on July 20, 1787. Cc: @TheGNapp @JoshuaMatz8
Randolph at the Convention on presidential insurrection:
"Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power... Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections."
Update: I've added a textual argument here:
Why did the Framers use "convict" and not "remove" or "convict and remove" in Art I, S 3, c.6 I for impeachments, if removal was always a necessary first step?
shugerblog.com/2021/01/17/a-t…

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More from @jedshug

Jed Shugerman Profile picture
16 Jan
This exchange is the bigotry of low expectations of conservatives in the Trump era.
@DavidLat, @judgeluttig: The notion that Mike Pence was a "profile in courage" for not participating in a coup, but AWOL & passively enabling that coup to build for 2 months, is outrageous.
2/ Trump suggested Pence could overturn the electoral college on Jan 6, and we witnessed right-wingers online eagerly believing this nonsense.
Instead of shooting it down, Pence waited silently until the last day to reject it. He played a direct role in sparking this disaster.
3/ @Mike_Pence had a duty to acknowledge Biden's win at least by mid-December (after the legal challenges had failed on the merits, when the states certified by the Safe Harbor Dec 8, when the Electors were formally voted Dec 14).

Pence's cowardice *increased risk of violence*.
Read 5 tweets
Jed Shugerman Profile picture
14 Jan
For Senate trial, I tentatively think the Chief Justice should preside.
Best reading of Art I S 3 is original+purposive:
It’s not just the direct conflict problem for VP to preside in removal.
Trying presidential conduct is fraught w/ political, partisan & personal conflicts.
2/ There is also a textual practical reading for the Chief to preside:

In a normal Senate trial, who would preside during any *disqualification stage* after removal vote?
When the sitting president has already been removed? He/she would be formally no longer the president...
3/ The formalistic textual reading (the Chief presides only for formally sitting presidents) would lead to the strange conclusion that the Chief Justice can never preside over Disqualification, even after presiding after the entire trial up to that point.
There’s formally no VP!
Read 4 tweets
Jed Shugerman Profile picture
13 Jan
I was genuinely stunned by how thin and unpersuasive his analysis was here. It's not an attempt at original public meaning, but rather, very weak textualism that he overclaims.
He is a smart guy. What is he doing here?
I meant this as a reply agreeing w/ @jadler1969 on @judgeluttig's remarkably weak op-ed, arguing that impeachment will be invalid.
The textual argument is silly; thin textualism is less appropriate than originalism here; he offers no historical evidence.
*He acknowledges the historical evidence against him:
Sen.Blount 1797 impeachment (already a confusing debate about officers v. member of Congress, yet he was out of office), and Belknap 1876.
@judgeluttig offers no historical evidence for his view here:
washingtonpost.com/opinions/2021/…
Read 5 tweets
Jed Shugerman Profile picture
13 Jan
I made a Google Sheet tracker of the House GOP members most plausibly to impeach today:
86 who voted No on the challenge to PA's electors (a smaller number than the AZ challenge).
I noted 26 signers the SCOTUS brief TX v. PA, leaving 60 to track closely:
docs.google.com/spreadsheets/d…
1/ Starting a live thread on impeachment now.
@LeaderHoyer is praising 3 of the GOP members who already announced votes to impeach:
Most praise for @Liz_Cheney
@RepJohnKatko
@RepKinzinger
2/ Read the full Judiciary Report linked here.
I disagree with using the word "incitement," because it muddles/confuses the debate and gives an excuse for a valid legalistic argument to vote No.
But Judiciary report is excellent summarizing the facts.
judiciary.house.gov/uploadedfiles/…
Read 50 tweets
Jed Shugerman Profile picture
6 Jan
The joint congressional session just started. Pence had already issued a statement rejecting the Trump “theory” that a VP can unilaterally ignore certified electors, consistent with @maggieNYT reporting.
But Pence didn’t read it live (yet)...
Thread.
nytimes.com/2021/01/05/us/…
Here is Pence’s statement rejecting the crazy coup theory, but stretching to “both sides” this debate with a strawman: “Others believe that electoral votes should never be challenged in a joint session... Neither view is correct.”

Who says “never”? Sincerely I have no idea.
3/ As the states are called alphabetically, @amyklobuchar recognizes Arizona's electors for Biden as valid.
Far-right nut from Arizona @DrPaulGosar rises to challenge the Arizona electors, and cheers and applause erupt from the nut gallery.
Shame on them.
Read 10 tweets
Jed Shugerman Profile picture
5 Jan
A pattern that the GOP is an authoritarian crime regime:

Each time Trump has been caught red-handed committing crimes, in unison the GOP attacks the investigators & whistleblowers, as intimidation & provoking real threats of violence.

Raffensperger is just the latest target.
It's scary. An associate of Donald Trump Jr emailed a threat to go after my job with a made-up story a year ago. Then there are the anti-semitic trolls.
But I can't even imagine what Marie Yovanovich, Vindman, Raffensperger & their families are experiencing.
I kept the receipts.
I saved twitter screenshots and the email.
We all should keep these receipts from 2017-2020.
Thank goodness the real whistleblowers and public officials kept their receipts.
Justice is coming.
Read 4 tweets

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