I expect some Republicans will argue that Trump can't be impeached because he was engaged in "free speech."
That is utter constitutional nonsense. It gets the First Amendment wrong. It gets the Impeachment Clause wrong. And it gets the facts of what actually happened wrong.
"Among the most foolish ideas circulating right now is that Donald Trump cannot be impeached and removed for his role in fomenting an insurrection aimed at Congress because he engaged in constitutionally protected freedom of speech" @dorfonlaw
I'm a lawyer who worked on the impeachment. Trump was charged with a plot to subvert democratic elections and sabotage checks & balances. We *expressly* alleged this was a pattern in his behavior. And we *expressly* urged removal because it was clear he'd attack democracy again.
As the House Judiciary Committee pointedly noted in its report supporting impeachment, "Every day that this Committee fails to act is thus another day that the President might use the powers of his office to rig the election while ignoring or injuring vital national interests."
And once more here: "A President who acts this way believes he stands above the law ... Unless he is stopped, President Trump will continue to erode our democracy and the fundamental values on which the Nation was founded."
As is always true of filings at @KaplanHecker, it reflects a team effort and vital contributions from many extraordinary colleagues.
Last month, @LeahLitman published a powerful @PostEverything analysis of the case (which we quote in our brief), explaining why DOJ's motion to substitute the United States as the defendant is both meritless and deplorable
Today was @tribelaw's last day in the classroom at Harvard Law School
Of course, he will continue to teach us all in op-eds, essays, tweets, TV appearances, and many other settings
Still, I'd like to mark the occasion & celebrate my friend, mentor, hero, and co-author
Without exaggeration, @tribelaw is one of the most important legal thinkers in American history. His legacy and contributions are hard to overstate. Few judges -- indeed, few #SCOTUS justices -- come anywhere close to matching his influence or mastery of the Constitution.
Yet in many ways, @tribelaw has been just as influential through his teaching as his scholarship and advocacy
Generations of bright-eyed students at @Harvard_Law have explored the Constitution -- its secrets, structure, harmony, and history -- under his masterful tutelage
In its powerful, unanimous decision -- authored by all three judges on the panel (Walker, Parker, Carney) -- the Second Circuit emphasizes the importance of "real-time, comprehensive solutions" to healthy & safety crises at federal prisons.
This lawsuit was filed after the Metropolitan Detention Center in Brooklyn lost heat and power last winter, causing a humanitarian crisis & illegal limits on attorney access
Here, the Second Circuit also highlights the "drastic challenge" to prison safety "presented by COVID-19"
On October 15, I joined the staff of the House Judiciary Committee to serve among counsel for the impeachment inquiry. Since then, I've worked alongside extraordinarily talented lawyers, officials & public servants in defense of our democracy. Today was my last day in that role.
I am eternally grateful to @RepJerryNadler and his team for welcoming me aboard. It was an honor to share offices with @NormEisen, @BarryBerke, @SarahIstel, and many other brilliant, hardworking members of the Judiciary Committee staff.
Indeed, amid debate over the #TransBan and #TravelBan, I wrote an op-ed for @PostOpinions in *March 2018* identifying this animus-laundering strategy and warning that we could expect to see a lot more of it
I'm late to the party but have four thoughts on how this statement affects a number of the ongoing battles between #Trump and the #House -- including those relating to investigations, subpoenas, and obstruction of justice.
First, to the extent Trump disputes the accuracy of key facts in the #Mueller report, that massively enhances Congress's case for seeing the unredacted report, having #Mueller testify, having #McGahn testify, and having its subpoenas honored. So Trump shot himself in the foot.
Second, McGahn is a potentially dangerous witness for Trump, so Trump's pattern of attacking him (manifested yet again here) is very risky. Indeed, Trump's penchant for publicly blasting current and former officials may well cause him many more headaches going forward.
A number of folks have expressed doubt that any of this matters. In their view, officials currently defying Congress (and any judges who would uphold such defiance) will persist in doing so regardless of Congress's source of authority.
It seems fair to say that this view partakes of a more general nihilism about the the rule of law under Trump: the creeping, paralyzing sense that nothing matters anymore except partisan loyalty, tribal truth, and the will to power.
To be sure, that's certainly true of Trump and his die-hard allies. Rather than follow the law, these officials cynically assert that it cloaks them with powers that defy judicial review or congressional oversight, no matter how egregious their illegality and animus.
This is an outrage. #SCOTUS just reversed an Eleventh Circuit decision blocking an execution where the inmate, a Muslim, wanted an imam rather than a Christian chaplain to accompany him in the execution chamber. Justice Kagan dissents, "I think that decision profoundly wrong."
Kagan writes: “'The clearest command of the Establishment Clause ... is that one religious denomination cannot be officially preferred over another.' Larson v. Valente, 456 U. S. 228, 244 (1982). But the State’s policy does just that."
Kagan: "A Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side."
In this article, @Sulliview argues that "talk of impeachment, all-but-taboo in Big Media’s coverage of Trump, [has] moved from the margins into the mainstream." She attributes that development mainly to a prominent essay in @TheAtlantic. That's not right. washingtonpost.com/lifestyle/styl…
There's no denying that #impeachment talk has accelerated over the past few months. But I'm not convinced that this past week was really such a Rubicon when considered in broader perspective, or that a handful of well-argued essays in liberal magazines are the drivers of change.
For starters, there's been no shortage of impeachment talk in mainstream publications since Trump took office. I've gathered quite a few such articles in this @ShallTakeCare database, which includes analyses tracing back to before Trump even took office. takecareblog.com/blog/impeachin…
.@benjaminwittes suggests Trump may have obstructed justice after taking office as part of collusion w/ Russia dating back through the campaign. In my book w/ @tribelaw, we anticipated that possibility and offerred a framework for analyzing it (pp. 60-61). lawfareblog.com/what-if-obstru…
We first explain that pre-inauguration conduct can be impeachable when aimed at the corrupt acquisition of the presidency. This conclusion follows from the core purpose of the impeachment power and from debates surrounding its inclusion in the Constitution.
Regardless, we doubt that a candidate who improperly colludes w/ a foreign power would cease all impeachable conduct the instant he's sworn into office. He'd instead exercise power in a manner consistent with that nation's "expectations of continuing influence over US policy."