Const'l law & history of the presidency. I typically tweet as an explainer, not an advocate. DMs open for questions. Professor @MSULaw; loyal @UMich alum/fan
3 subscribers
Jul 13, 2021 • 5 tweets • 2 min read
This gambit is just the latest example of why the statutory line of succession shouldn't include the Speaker.
This isn't a partisan issue; it'd be nuts to have a D Speaker in the line of succession of a R administration, and equally nuts w/ a D administration and R Speaker.
Scholar-commentators (including me) have been arguing for reform here for decades, consistently—regardless of which party was in power.
It makes no sense to have a line of succession that could change partisan control of the presidency like this in the middle of a term.
2/5
Feb 14, 2021 • 9 tweets • 2 min read
My initial tally (subject to change) of the 43 acquitters' post-vote statements:
16 relied entirely on jurisdiction, w/o criticizing Trump (Barrasso, Blunt, Crapo, Daines, Ernst, Fischer, Inhofe, Lankford, Lummis, Marshall, Risch, Rounds, Rubio, Shelby, Tuberville, Wicker).
1/
4 said there was no jurisdiction but mentioned other objections, w/o criticizing Trump (Braun, Hyde-Smith, Kennedy, Sullivan).
3 said the trial was unconstitutional but were not specific, w/o criticizing Trump (Blackburn, Hagerty, R. Scott).
2/
Feb 12, 2021 • 8 tweets • 2 min read
Thread on late-impeachment related questions asked in the trial.
Q1. Given that some pre-1787 state constitutions provided expressly for late impeachment, does the Framers' failure to do so suggest they didn't mean to allow late impeachment?
1/
A1: No pre-1787 state constitutions expressly ruled out late impeachment. Some did later—using direct language.
The Framers ruled out *other* things using direct language.
Their silence here thus does not suggest an intent to rule out late impeachment.
2/
The article favored late impeachability, but it set out all the evidence I found on both sides--lots for them to use.
But in several places, they misrepresent what I wrote quite badly.
1/4
One odd thing they do is cite me citing other sources instead of just citing those sources (e.g., p.17 & n.47). Another more problematic thing: they suggest that I was endorsing an argument when what I actually did was note that argument--and reject it (e.g., p.21 n.57).
2/4
Jan 9, 2021 • 7 tweets • 3 min read
I try to answer questions (25th amendment, impeachment, pardons) people tweet at me but this week I haven't been able to get to every one.
Here's an FAQ thread-of-threads. Some link my books for more detail, but obviously I'm happy to answer questions on Twitter for free.
1/5
25th AMENDMENT
It looks likely* that of the president, VP, and all 17 people in the line of succession, not one will be a straight white male Protestant.
* Assumes nominees are confirmed and front-runners are picked for Commerce and Labor.
1/3
Biden (Catholic)
Harris (Black/South Asian female)
Pelosi (Catholic female)
Leahy (Catholic)
Blinken (Jewish)
Yellen (Jewish female)
Austin (Black)
Garland (Jewish)
Haaland (Native American Catholic female)
Vilsack (Catholic)
Commerce front-runner Raimondo (Catholic female)
2/3
Nov 5, 2020 • 4 tweets • 1 min read
The possibility of Biden being president w/ a Republican Senate has prompted many tweets about "acting" Cabinet secretaries. Almost every one I have seen gets two things wrong.
A corrective:
1. Presidents can't just name "anyone they want" as an acting Cabinet secretary...
1/4
Under the FVRA, which would cover most acting secretaries, an acting secretary must be either (1) the "first assistant," i.e., deputy secretary; (2) in some other Senate-confirmed position; or (3) someone who worked in the department for at least 90 days in the last year.
2/4
Oct 27, 2020 • 7 tweets • 2 min read
With today's chatter about vote-counting processes, declaring winners on Election Day or not, etc., I want to recount a crazy, revealing story from the 2000 election that most people have forgotten about or never knew . . . because it happened in New Mexico and not Florida.
1/7
New Mexico saw about 600,000 votes cast. On election night, Gore led by about 5,000 and the networks initially declared him the winner.
Late Wednesday, a programming error was discovered that had excluded 67,000 votes from totals in Bernalillo County (the biggest county).
2/7
Oct 9, 2020 • 5 tweets • 2 min read
As expected, Speaker Pelosi's 25th Amendment talk today was on introducing the Raskin bill. This would create a bipartisan commission to substitute for the Cabinet in deciding when the president is "unable" under §4.
Tweeters are confused about what this means. Some notes:
1/5
* No one thinks this legislation will pass now. If it does, Trump would surely veto it.
* Legislation like this is provided for in §4. It says that the VP and Cabinet invoke §4, but that Congress can legislate a different body to substitute for the Cabinet in that process.
2/5
Sep 19, 2020 • 11 tweets • 2 min read
I checked the data on previous Supreme Court vacancies near an election. Here's what I found:
Latest vacancy filled before the election: June 10, filled July 24. This was exceptional, though: Justice Hughes resigned in June after the Republicans nominated him for president.
1/8
That outlier aside, the latest is March 23 (Waite), filled July 20.
6 other vacancies arose later than that. Of those, 5 were only filled after inauguration. The 6th was filled soon after an election in which the president was reelected.
But that's not the whole picture.
2/8
Jul 11, 2020 • 8 tweets • 2 min read
I see confusion on Twitter about pardons b/c of Roger Stone. Here's a thread—tell a confused friend.
This is for those who 1) didn't think Trump had the power to do this (wrong); or 2) think he shouldn't have it (misses some points).
("Pardon" here means pardon OR commute)
1/7
* "I thought impeached presidents can't pardon anyone"
Impeachment by itself does nothing to a president's powers. Only a conviction affects them. It's all or nothing.
Trump pardoned several people back in February, and Clinton and Johnson pardoned plenty post-impeachment.
2/7
Apr 19, 2020 • 6 tweets • 2 min read
The main reason that one sees so many tweets about the 25th Amendment (§4) is that so many people think it works like this:
Step 1: Someone invokes the 25th Amendment.
Step 2: The president is removed from office.
But it doesn't work like that.
1/6
First, it requires incapacity. Not impairment, ineptitude, or extreme badness. Full-on incapacity. That's a high bar.
Second, it's invoked by the VP and Cabinet. 25A's drafters thought they'd be reluctant to move against their boss. For the drafters, this was a plus.
2/6
Mar 14, 2020 • 4 tweets • 2 min read
Seeing speculation on double presidential vacancies and the 25th amd. Time for a thread.
1. 25th amd. §§ 3-4 transfer power to the VP when the president is "unable," and transfer it back when he recovers. But they don't apply when a VP acting as president becomes "unable."
1/4
That is, 25A doesn't operate to transfer power further down the line of succession. As my book (tinyurl.com/y4r3xlhy) describes, the amendment's drafters wanted to keep it simpler.
But Article II and the line of succession statute still apply. My book explains how we...
2/4
Feb 27, 2020 • 10 tweets • 3 min read
Big problems with this piece, which claims that impeached presidents can't pardon crimes linked to the articles of impeachment.
* It's an out-there argument, phrased with the confidence of a slam dunk.
Readers deserve to know: the vast weight of authority is against it.
* The piece first said "many scholars agree" (as reproduced in Politico's tweet). That changed to "some scholars." Then the phrase was removed entirely.
Revisions are good—high praise to author Corey Brettschneider for that—but they should be noted. Do better, Politico.
2/8
Feb 15, 2020 • 6 tweets • 2 min read
Roger Stone’s case put pardons back into the news, so there are lots of questions—and wrong answers—about pardons circulating on Twitter. A thread is in order.
1. A pardon does not necessarily have a legal effect of declaring/admitting guilt.
Johnson and Clinton issued heaps of pardons after being impeached. The pardon power has an impeachment exception, but it’s point is to separate the impeachment and criminal processes and limit pardons’ effect to the latter.
2/5
Jan 18, 2020 • 5 tweets • 2 min read
The Constitution says presidents can pardon federal offenses "except in cases of impeachment."
@RBReich thought that means impeached presidents can't be pardoned for the crimes they were impeached for. That's very wrong. This thread explains why…
The impeachment exception means pardons can't stop or undo impeachments or impeachment convictions.
The clause evolved from England's 1701 Act of Settlement, which said pardons can't stop impeachments. Our version started there but went further, preventing the undoing too…
2/5
Jan 16, 2020 • 4 tweets • 1 min read
People need to keep a historical perspective on how hard it is to remove a president.
* Andrew Johnson, a Democrat, faced a Senate that was 83% Republican. They *still* didn't have the votes to convict him.
* Nixon was in serious trouble, but he had good reason to think...
1/4
...he had enough support from Senate Republicans to avoid conviction. It was only when the "smoking gun" tapes came out—a recording of him essentially saying "let's cover this up"—that his bedrock supporters left him and he resigned.
2/4
Jan 8, 2020 • 5 tweets • 2 min read
People who follow me know I spend a lot of time correcting people's factual errors. It's a sort of informal social experiment—Can I make a dent in misinformation? How often do people respond positively? How does my phrasing affect that? What I've learned is unsurprising:
1/3
* About half ignore me.
* Of the people who respond, most respond positively. This positivity rate is even higher when the correction furthers their agenda—tell someone the thing they're worried about isn't true and they're more likely to be happy to be corrected.
2/3
Oct 18, 2019 • 9 tweets • 2 min read
Time for a new thread on acting secretaries and the 25th Amendment. Tons of folks are tweeting questions or, worse, spreading inaccurate hooey of the sort that moved me to write a whole book on §4 of 25A (tinyurl.com/y4r3xlhy).
Let's spread truth on Twitter for a change.
1/91. Acting secretaries are not a 25th Amendment issue now. Contrary to scores of tweets declaring the Cabinet is "mostly" or "full of" acting secretaries, there is just 1 vacancy/acting secretary: DHS. The other 14 posts that'd vote on 25A4 have Senate-confirmed heads now.
2/9
Sep 24, 2019 • 7 tweets • 2 min read
I’m seeing a lot of tweets wondering why the 25th Amendment hasn't been invoked on President Trump. “What’s 25A for if not this?!” many ask.
My new book (tinyurl.com/y4r3xlhy) answers these questions in detail, but to give a Twitter-sized version:
1/71. 25A is meant to transfer power swiftly when the president is completely incapacitated. Think coma, serious stroke, severe dementia.
2. It can cover other sorts of cases too, but in such cases it's designed to put two heavy thumbs on the president's side of the scale:
2/7
Aug 17, 2019 • 5 tweets • 2 min read
Let's add some truth to 25th Amendment Twitter: 1. 25A4 would be harder than impeachment (which is a no-go now). 2. Folks who think Trump is losing it read #1 and ask, "What's 25A4 for then?" Answer: Mainly comas. 3. Acting secretaries in the Cabinet=largely irrelevant.
1/5
To elaborate: 1. 25A4 doesn't remove presidents from office, it transfers power provisionally. He can (and would) try to come back; keeping him out would require sustaining 2/3 majorities in the House and Senate--more than impeachment. Think the votes are there? Count again.
2/5
