My originalism hypocrisy argument in @politico:

"The Senate GOP used Trump to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, they effectively voted 44 to 6 to disqualify originalism itself."
politico.com/news/magazine/…
2/ "Along with Trump, originalism was on trial this week in the Senate. The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law...
3/ "but a framework that depends upon historical context to find meaning and purpose... Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican Senators this week ignored the whole principle of originalism.
4/ @RepRaskin @RepJoeNeguse @davidcicilline proved that impeachment from its origins applied to ex-officials.

"Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence."

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More from @jedshug

13 Feb
Before people get upset about not calling witnesses:
I think Democrats understand the chances have increased significantly over the past 24 hours of Trump being criminally prosecuted for Jan. 6 (with witnesses, a real judge, and full legal process).
Plus the Georgia call.
I think the House managers have done a great job. The problem is the Senate “judge and jury,” and as we’ve seen, the GOP Senators are only interested in obstruction and partisan spin.
Let prosecutors investigate and then - in a real courtroom - get a clean shot at questions.
I had said earlier and often that Trump would not face prosecution: the speeches themselves were *not* criminal incitement.
But now: new questions of contacts before and during the insurrection arose. I think a criminal investigation is now likely, and an indictment is plausible.
Read 6 tweets
9 Feb
I'm sure it is just a coincidence that, as far as I was counting, ALL of the members of Congress featured in Trump's defense video, villifying them for calling for impeachment in 2017-18...

were women, people of color, or Jews.
Fact-check: True.
Shame on David Schoen for selling us out.
No accident, brown & women's faces were shown for the longest time.

Here are the targets of Trump's video:
@AOC @ewarren @RepRaskin @RepCohen @RepMaxineWaters @algreen @JulianCastro @IlhanMN @RepRashida @keithellison
Some of the white non-Jewish male members who called for impeachment in 2017-18 who coincidentally aren't featured in the video:
@RepSwalwell @BetoORourke @davidcicilline

How about this: If you are a lawyer defending a racist president for inciting insurrection, don't do this.
Read 4 tweets
8 Feb
March 2018:

@ManhattanDA Vance wasted no time indicting Manafort on 16 state counts...
Most of the charges seem to violate New York’s double jeopardy law...
A damaging setback for New York’s civil liberties and the rule of law.”
slate.com/news-and-polit…
Shot 👆
Ambulance chaser 👇
Cy Vance has been a disaster for the rule of law, underprosecuting the Trumps and corruptly enabling Trump’s crimes.
Then partisan-hack abusing his power:

nytimes.com/2021/02/08/nyr…
Sorry, March 2019:
(Thanks to @JeremyStahl for strong edits)
slate.com/news-and-polit…
Read 4 tweets
19 Jan
This is too alarmist, @Lawrence.
Pardons don’t have to be announced or publicized by noon tomorrow, but like all official acts, they have to be documented by noon, and Congress can subpoena all pardons on Thursday to get a final record.
As an example of the Framers’ concern about executive secrecy, the Secret Treaty of Dover between Charles II and Louis XIV was suspected and scandalously discovered years later in 1770s and condemned by the Framers during the impeachment debate on July 20, 1787.
Congress can issue subpoena for all White House pardon records and to private citizen Trump himself. If they have no official record or provide no official record of such a pardon, then it doesn’t officially exist.
Read 6 tweets
17 Jan
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."
Read 4 tweets
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

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