Author: Henry Wray

The most recent attack on Justice Thomas and his wife, Ginni, has no more validity than the many similar attacks they have endured for decades. Leftist media and many Democrats refuse to apply to the Thomases the well-established standards applicable to all other married couples where one spouse is a judge. The professed outrage over text messages between Ginni Thomas and the Trump White House is just another example of relentless and spurious efforts to limit or discredit Justice Thomas’s service on the Supreme Court. As usual, it relies on hyperbole and misdirection rather than substance.

Disclosure of messages between Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, and Mark Meadows, Donald Trump’s one-time chief of staff, generated a media frenzy that rivaled coverage of the Ukraine war. In the texts, which were exchanged shortly after the November 2020 election, Ms. Thomas urged Meadows to take aggressive action to challenge Trump’s defeat. As first reported by the Washington Post, the texts were voluntarily provided by Meadows to the House January 6 Committee and apparently leaked by the Committee to the Post.

Based on a series of distortions, the critics virtually accuse Ms. Thomas of treason. However, their real target is the Justice. They assert that the texts create a conflict of interest forcing him to recuse himself from participating in a wide range of cases that might come before the Supreme Court and cast doubt on his participation in at least one past case. Failure to accede to their demands, they claim, undermines the “legitimacy” of his service on the Court, and even the Court itself. Some critics call for him to resign or be impeached.

The consensus standard is that viewpoints and advocacy by a judge’s spouse are not imputed to the judge and do not constrain his or her judicial functions

The professed outrage over the texts is the latest installment in the longstanding campaign of leftist media and politicians to undermine Justice Thomas by attributing to him Ms. Thomas’s prominent activities in support of many conservative causes. However, the notion that judges are responsible for and limited by the political viewpoints of their spouses has long been discredited.  

Ironically, the leading illustration of the current standard comes from one of the critics’ own: liberal icon Stephen Reinhardt, former judge on the Federal Ninth Circuit Court of Appeals. One of the parties to a lawsuit challenging a California ballot initiative prohibiting same-sex marriage sought Judge Reinhardt’s recusal from the case because his wife, and longtime director of the Southern California ACLU, was a vigorous opponent of the initiative, as was her organization. Judge Reinhardt rejected the motion to recuse under the federal recusal statute (28 U.S.C. §455) and explained his reasoning in a memorandum.

Judge Reinhardt’s memo deserves to be quoted at some length and should be required reading for critics of the Thomases:

     “My wife’s views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or female. My position is the same in the specific case of the spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.

“Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 . . . the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage—that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say ‘spouses’ than ‘wives’ . . .). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.”

     “Nor can I accept the argument that my wife’s views constitute an ‘interest’ that could warrant my recusal under § 455(b)(5)(iii), as such a reading would require judges to recuse themselves whenever they know of a relative’s strongly held opinions, whether publicly expressed or not.”

He concluded with this key point, which has particular salience in the case of the Thomases:

     “It is indeed important that judges be and appear to be impartial. It is also important, however, that judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by publicly questioning their impartiality.”

Recusal is uniquely fraught for Supreme Court justices. Unlike lower courts where another judge can substitute for one who recuses, a recused Justice cannot be replaced. Moreover, given the scope of Ms. Thomas’s political activism, attributing her causes to him would implicate many high-profile cases and potentially have major effects on the Court’s jurisprudence. (No doubt this is exactly what the critics want.)

Judge Reinhardt’s reasoning reflects the standard practice today. There are many examples of judges’ spouses engaging in political advocacy and activities (including holding elective office) or other public interest advocacy as individuals or through organizations such as the ACLU. Absent an obvious conflict of interest such as the spouse having a financial stake in a case before the judge, both spouses can work entirely independently. Indeed, this approach seems to be widely accepted and noncontroversial—unless your name is Thomas. In the latter case, all bets are off.    

Ms. Thomas’s text exchanges provide no grounds to depart from the standard practice

Going by current reports, nothing in the Thomas-Meadows texts provides a credible basis to depart from the usual standard. For starters, critics grossly distort the context in which the texts took place by attempting to connect them to the January 6 riot at the Capitol. Contrary to the impression conveyed by many critics, the texts hardly touch on the events of January 6. All but one of them took place well before then, in the early weeks following the election when the White House was formulating litigation strategies to test its stolen election claims. While these claims seemed dubious to many of us from the outset, litigating them was legitimate. The one and only text from January actually condemns the attack on the Capitol. Thus, Senator Klobuchar’s accusation that Ms. Thomas was “advocating for an insurrection” and Speaker Pelosi’s description of her as “an admitted and proud contributor to a coup of our country” are patently false. In fact, there is no evidence that Ms. Thomas had any involvement whatever in the riot.

The critics also grasp at straws to embellish Ms. Thomas’s role regarding the texts. One cited ethics lawyer, Stephen Gillers, acknowledged that a justice and spouse can pursue their interests in autonomous spheres, and therefore, he could “tolerate a great deal of Ginni’s political activism.” However, Gillers asserted that she “crossed a line” here. How? According to Gillers, by encouraging legal challenges to the election and making suggestions she became “part of the team seeking to overturn the election.” This is a huge stretch. There is no indication that she had any official status or authority, performed tasks, participated in strategy sessions, or provided any input beyond her often colorful exhortations. In short, she was not a team member in any conceivable sense. As one pundit put it, this would be like saying that an avid sports fan who yells encouragement to her team from the stands and shouts out plays for them to run thereby becomes part of the team.

Other ethics experts nebulously claim Ms. Thomas has an “interest that could be substantially affected” by election-related litigation for purposes of 28 U.S.C. § 455 requiring her husband’s recusal. However, as the Reinhardt example shows, the statute’s reference to an “interest” in a case surely means something more tangible than a personal viewpoint, no matter how strongly held or expressed. The experts do not specify what it might be in the case of Ms. Thomas.

Many critics emphasize that Justice Thomas was the sole dissenter when the Supreme Court refused to prevent the National Archives from providing documents, including texts to or from Meadows, to the January 6 Committee. However, the texts involving Ms. Thomas were not part of that case; Meadows had turned them over earlier. In any event, there is no indication that Justice Thomas even knew of the texts between Meadows and his wife.

Finally, many of the critics base their case on pure conjecture. They seize on a mention Ms. Thomas made in one text to a conversation she had with her “best friend” and speculate from this that she had some sort of substantive discussion with Justice Thomas about the election claims. They also speculate that there may be more texts. If so, their significance, if any, could be evaluated—hopefully more honestly than the existing batch.

Don’t expect this controversy to go away

While the critics cannot squeeze a plausible conflict of interest case from the facts reported so far, they are sure to keep fishing. Reportedly, the January 6 Committee is under pressure to call Ms. Thomas as a witness. Since there is not a scintilla of evidence that she had any involvement in the events of January 6 (other than appearing briefly as a spectator at Trump’s rally), this would be nothing but a political stunt and a distraction from the Committee’s real work.

(Personal disclosure: I know Ginni Thomas, having worked with her years ago on nonpolitical government management issues when she was a congressional staffer. While I don’t share her views on the 2020 election or her enthusiasm for Trump, I consider her a friend. I’m also confident that, whatever one thinks of her politics, she is more genuine than most of her critics.) 

The Dobbs case now before the Supreme Court, which challenges Roe v. Wade and related precedents, presents complex and difficult issues. Yet many abortion proponents insist that retaining these current precedents in full is the only legally plausible and valid outcome. Any decision adverse to Roe, they maintain, would amount to a “political” act by an “illegitimate” Court. Nonsense. There are principled grounds for concluding that Roe was (and is) seriously wrong as a matter of constitutional law and that it is not entitled to stare decisis deference. From this perspective, abortion opponents could just as well argue that adhering to Roe would be a political outcome implicating the Court’s legitimacy—as many surely will if the decision goes against them. Everyone would be better served if the abortion war combatants eschewed the demagoguery and stuck to honest, substantive arguments on the merits. Hopefully, the justices will do the same in their decision.

Current public discourse is poisoned by our inability to subject major societal issues to good faith, civil debate. Instead, we regularly split into polarized factions that largely demonize and talk past each other, preferring hyperbole and name-calling to rational, substantive debate. Dobbs v. Jackson Women’s Health Organization is the latest example.

It has become almost routine for politicians, the media, and academics (particularly on the left) to maintain that any politically charged Supreme Court decision that rejects their preferred outcome is not just wrong but cause to question the “legitimacy” of the Court. This approach carries over to attacks on individual justices; many on the left regard one or more Trump appointees as “illegitimate.” Alarmingly, several justices are picking up on these themes. During the oral argument in Dobbs, the three liberal-leaning justices suggested that a decision adverse to Roe and Planned Parenthood v. Casey would be perceived as nothing more than a political act enabled by their recently-appointed colleagues. Justice Sotomayor was the most extreme, asserting that such a decision would create a “stench” on the Court that it could not survive.

Reasonable (and unreasonable) minds differ strenuously on where the Court should come out on Dobbs. However, it is absurd to contend that a decision retrenching the Court’s current abortion jurisprudence could only be an “illegitimate” political exercise.

For one thing, Roe rests on a precarious legal foundation. It was decided at a time when the Court was much more freewheeling than it is now in adjudicating constitutional law cases. The difference between a majority of today’s justices and those who decided Roe and Casey is not political; rather it reflects fundamentally different approaches to judging.  Opponents of Roe have long maintained that the right to abortion it found was created from whole cloth and lacked any firm grounding in the Constitution. They consider the decision not just erroneous but egregiously flawed as a matter of constitutional law. It’s likely that all six of the Court’s conservative-leaning justices sincerely hold this view. Even many proponents of abortion rights recognize Roe’s weakness from a strictly legal viewpoint. Indeed, a fractured bare majority of the Court had to substantially rework Roe to save it in the 1992 Casey decision. Notably, neither advocates nor justices offered much in defense of the substantive merits of Roe during the Dobbs oral argument. Instead, its supporters leaned heavily on stare decisis.

But Roe is not necessarily a strong candidate for stare decisis treatment. The doctrine of stare decisis embodies the sensible notion that courts should generally adhere to their own precedents in order to promote stability and predictability in the law. However, it imposes no hard and fast rules. The doctrine applies most readily to decisions that may be legally dubious but have become widely accepted over the years. For example, many decisions from the Warren Court era dealing with criminal procedure were highly controversial when issued but are now thoroughly ingrained into law enforcement practice. By contrast, Roe remains as fiercely controversial and divisive today as it was in 1973, both legally and in the eyes of the public. It has been subject to repeated legal challenges and judicial refinement. Public opinion regarding abortion has moved very little over the years and remains sharply divided.

One reason for the continual churn in abortion jurisprudence and the persistent divisiveness in public sentiment–as well as another impediment to applying stare decisis–is that abortion presents a mix of complex and nuanced legal, medical, scientific, religious, moral, ethical, and philosophical issues that do not easily lend themselves to definitive judicial resolution. Attempts by the justices in Roe and subsequent decisions to treat abortion as exclusively a legal issue subject to bright-line judicial solutions have been largely unsuccessful. What they have done is fuel political attacks on the Court and its credibility.

It is the height of arrogance for either side to claim that it possesses the only objective truth concerning the host of issues abortion poses and that any contrary viewpoints are not only wrong but unworthy of serious consideration. Nevertheless, it’s probably inevitable that the losing side in Dobbs will indeed challenge the “legitimacy” of the decision and the Court itself, claiming that the decision is based on politics not law. Since the Court will be damned either way, the best course for the justices is to focus exclusively on the legal merits and not obsess over how its decision will be received.

Recent attacks on the integrity and legitimacy of Supreme Court justices undermine the ability of the judiciary to function effectively. In addition to being dangerous, such attacks are disingenuous and wrong. Splits among the justices reflect contrasting judicial philosophies rather than politics. Criticism that the justices are “political hacks” is agenda-driven demagoguery designed to achieve judicial outcomes more to the liking of the critics. At its core, the critics’ real message is that it’s fine for the justices to be partisan hacks as long as they are our kind of partisan hacks.     

Accusations that Supreme Court justices are politicians in robes masquerading as objective interpreters of the law have intensified recently. Among the many critics, one pundit went so far as to assert that the justices are “partisan hacks.” Another warned that the Court faces a “crisis of legitimacy.” Some critics point to a recent Gallup poll that showed decreased public confidence in the Court.

What to make of these accusations? 

For starters, it’s clear the critics are motivated by political agendas rather than genuine concern for the well-being of the judiciary. Almost all the current attacks come from the political left. So-called “conservative” justices now dominate the Court. Liberal critics see this as a threat to many priorities they have achieved or seek to achieve through litigation, including the ultimate prize, Roe v. Wade. In response, they want to restructure the Court through court-packing or other means in order to shift its ideological balance to the left. These initiatives would destroy the Court’s independence and are probably too radical to enact. At a minimum, however, the critics seek to intimidate the justices and influence their rulings through such efforts and even more direct threats. (See here and here.)

Concerns that political polarization is undermining public confidence in the Court are overblown. This year’s Gallup poll shows a decline to 49 percent in public “approval” of the Supreme Court. However, polling results ebb and flow considerably from year to year, likely driven primarily by reactions to a few headline-grabbing decisions. (Last year the Court’s public approval stood at 59 percent.) The latest polling numbers probably also reflect general declining public trust in American institutions. Notably, the Supreme Court still ranks much higher in public esteem than its critics in Congress and the media. In any event, unlike the political branches, the Court is not (and should not be) engaged in popularity contests. Its decisions are supposed to align with the law rather than public opinion.

The differences between Republican-appointed “conservative” justices and Democratic-appointed “liberals” stem mainly from contrasting judicial philosophies, not politics. The critics are right that Republican-appointed justices and Democratic appointees vote differently in many cases, although the differences are exaggerated. The critics are wrong, however, in attributing these differences to politics.

Statistics from the Supreme Court’s most recent term show only ten “polarized” decisions in which all Republican appointees were on one side and all Democratic appointees on the other. In fact, no two justices disagree more than half the time. Nevertheless, voting patterns do show significant splits. The votes of the three Democratic appointees aligned 88 to 93 percent of the time. Likewise, the six Republican appointees agreed most of the time although there was more variation among them. If politics does not explain these voting patterns, what does?

The answer is contrasting approaches to judging. There are distinct judicial philosophies and methodologies that divide so-called “conservative” judges from their so-called “liberal” colleagues. At the risk of considerable oversimplification, conservative judges usually favor “originalism” and “textualism” in interpreting the Constitution and federal statutes. These methods focus on the language of the law and attempt to adhere closely to its generally understood meaning. Originalists are reluctant to “find” new constitutional rights that are not mentioned in its text. At his confirmation hearing, Chief Justice Roberts famously compared the role of a judge to that of an umpire whose limited function is not to make the rules but rather to ensure that everyone plays by them.

Liberal judges, on the other hand, tend to prefer more free-wheeling approaches, sometimes referred to as “purposivism” and  “living constitutionalism,” that consider a wide range of external factors in interpreting statutes and the Constitution. They are more likely to view the Constitution’s meaning as evolving to adapt to contemporary values and mores. In this regard, former President Obama expressed his preference for judges “who understan[d] that justice isn’t about some abstract legal theory or footnote in a casebook” but is “also about how our laws affect the daily realities of people’s lives.”       

The Court’s recent (preliminary) decision in Whole Woman’s Health v. Jackson, which declined to stop a bizarre Texas antiabortion law from taking effect, is a prime target of the Court’s critics and a good illustration of these contrasting judicial approaches. The Texas law prohibits abortions that are constitutionally protected under current Supreme Court precedent (and it will no doubt eventually be declared unconstitutional unless the precedent changes). However, for various technical reasons it was designed to forestall judicial review until someone actually performed a prohibited abortion. In the meantime, the law has a chilling effect on women seeking abortions to which they are now constitutionally entitled.

Five conservative justices concluded that the Court lacked a legal basis to block the law’s enforcement at a preliminary stage since none of the named defendants had acted under it or planned to do so. Their conclusion is quite supportable legally; the Court has no authority to declare a law unconstitutional in the absence of a real case or controversy. But it leaves in effect, temporarily, an unconstitutional law that has immediate impact. This was too much for the three liberal justices, who strongly dissented. Apparently sharing the New York Time’s contempt for the majority’s reliance on “bloodless legal technicalities,” they were determined to somehow prevent Texas from getting away with its attempted evasion of judicial review. (Chief Justice Roberts hedged, conceding that the arguments against judicial intervention at this stage “may be correct” but still siding with the dissenters.) 

The merits of conservative versus liberal judging are vigorously debated in concept and as applied to specific cases. However, both approaches are within the mainstream of contemporary legal thought and neither necessarily leads to conservative/Republican or liberal/Democratic political results. (See here for an example of a politically liberal outcome flowing from an originalist analysis.) Indeed, Republican-appointed justices provided the decisive votes rejecting three challenges to Obamacare and achieving a major victory for LGBTQ rights. Additionally, Republican-appointed justices as well as many Republican-appointed lower court judges consistently rejected Donald Trump’s various legal challenges to his 2020 election loss. These are hardly outcomes one would expect from political operatives disguised as jurists

While the justices are not political partisans, those appointing them are and they do the justices a grave disservice. Presidents who nominate federal jurists and senators who confirm them have definite preferences in terms of judicial philosophies. Republicans favor conservative “strict constructionists” who aspire to apply the law as written and leave lawmaking to the elected representatives of the people. Democrats favor judges who take a broader approach and more readily apply their own sense of justice. While the political system once accommodated the contrasting judicial approaches fairly well, it has now run completely off the rails.

Presidents of both parties have long nominated justices whose ideology aligned with their political preferences. The Senate traditionally afforded presidents considerable deference regarding their nominees. It usually confirmed nominees on a bipartisan basis regardless of their ideology as long as they were considered to be within the legal mainstream and qualified intellectually and ethically. It was considered inappropriate to apply “litmus tests” to judicial nominees concerning how they would vote in specific cases.  Under this regime, the Senate overwhelmingly confirmed justices as ideologically disparate as Ginsburg (96-3) and Scalia (98-0).

Times have changed dramatically, and not for the better. Over the past few decades both political parties thoroughly and shamelessly politicized the appointment process. While most Republicans and Democrats still pay lip service to the ideal of an independent and nonpartisan federal judiciary, both are equally guilty of reducing the appointment process to a hyper-partisan farce in which litmus tests, demagoguery, and personal attacks abound and the substantive qualifications of the nominees are essentially irrelevant. This is particularly true of Supreme Court nominees.   

In this environment, it is easy to fall for the notion that justices are mere political pawns since politicians in both parties act as if this were the reality. Politicians on the left and their allies are now taking things to a new (low) level with their court-packing and similar schemes. No doubt politicians on the right and their allies would do the same if liberal justices dominated the Court.

All of this constitutes a dangerous and even existential threat to the Court. The ability of the judiciary to carry out its constitutional functions depends on public confidence that judges are unbiased and independent of the political branches. Doubts about judicial independence and objectivity are particularly worrisome as the judiciary has been forced in recent decades to assume an outsized role in our national affairs far beyond that contemplated by the framers of the Constitution. Ironically, this is due largely to the failure of the political branches to fulfill their constitutional responsibilities. Congress has largely abdicated its legislative functions and presidents frequently exceed their executive authority in filling the void left by Congress.

The best and perhaps only hope at this point is to restore some semblance of bipartisanship to judicial appointments and confirmations before politicians succeed in robbing the judiciary of its credibility. Sadly, it’s hard to see this happening as our politics descend further into the hyper-partisan, polarized abyss.     

A (rare) thoughtful piece on this polarizing subject: A Better Way to Flight Critical Race Theory. The author maintains that while CRT should not be used to indoctrinate students, it is wrong to ban teaching about it. Students should be exposed to CRT, like other controversial concepts, in order to subject it to scrutiny and analysis and allow them to draw their own conclusions. His take: “As someone who has spent decades working in the communities that CRT advocates claim to care about, in my view it offers no solution to unsafe neighborhoods, failing schools, or rising crime and homicide rates. Instead, it offers a cocktail of victimhood and hopelessness that never has nor will fix the inequities it claims to address, while lining the pockets of professors and consultants who push it in our institutions. Properly educated students will be able to see this for themselves.”

The Supreme Court recently upheld the legality of two Arizona voting rules that opponents charged violated the Voting Rights Act. This result is no surprise; the case against the rules was weak on the facts and law. Challenges to voting rules enacted by Georgia (and perhaps other States) should fare no better since their rules are likewise a far cry from the “voter-suppression”/”Jim Crow” measures portrayed by critics. In any event, these new rules figure to have little if any practical effect on voter turnout. Those concerned over election processes would do better to focus on how votes are counted rather than how they are cast.  

In Brnovich v. Democratic National Committee, decided last week, the Supreme Court rejected challenges to two Arizona election law rules brought under section 2 of the federal Voting Rights Act (VRA). This 6-3 decision unleashed predictable liberal outrage. Democratic politicians, including President Biden, as well as left-leaning media outlets, pundits, and law professors accused the Court of further gutting the VRA and abetting racist voter suppression. Justice Kagan wrote a fiery dissent much to the same effect. A look at what Brnovich actually involves, however, refutes these accusations.

Section 2 of the VRA prohibits States from imposing voting requirements in a way that results in denying or abridging the right of any citizen to vote on account of race or color. It provides that a violation is established if “based on the totality of circumstances” voting processes are not “equally open” to minority voters. One of the Arizona rules challenged in Brnovich disqualified the votes of individuals who cast their ballots in the wrong voting precinct. The other banned (with certain exceptions) the practice sometimes called “ballot harvesting” whereby third persons collect ballots from voters and submit them to election officials.  

Regarding the first rule, the evidence in Brnovich showed that the vast majority of Arizona voters across all racial and ethnic categories (over 98%) cast their ballots in the right precinct. Among the few who did not, there was a disparity of one-half of one percent between minority and non-minority voters. The Court concluded that since the system worked for almost all voters and resulted in only a small racial disparity among a small number of out-of-precinct voters, it was not unequally open in violation of the VRA. The Court also described various steps Arizona took to inform voters of their correct precinct and noted that Arizona law did not even require voting by specific precinct. Rather, voters had the option of voting early by mail or, in some counties, voting in person at voting centers that were not tied to individual precincts.

Regarding the second rule, the challengers offered no direct evidence that the ban on third-person ballot collection had any disparate impact on minority voters. There was anecdotal evidence that minority voters had used third-person collection more than non-minorities in the past—particularly Native American voters with limited access to mailboxes. However, this appeared to be more a matter of convenience than necessity. The Court also observed that exceptions to the third-person collection ban existed for a voter’s family members, household members, and caregivers. Additionally, Arizona permitted 27 days of no-excuses voting by mail in advance of elections. Finally, the Court found ample evidence to support the finding by the federal district court judge, after conducting a 10-day trial, that the third-person collection ban was not enacted with a racially discriminatory intent. The Court recognized that the ban served important public interests in discouraging fraud as well as pressure and intimidation of voters.

Justice Kagan’s lengthy dissent in Brnovich covered many topics but strained to explain how the Arizona rules could rise to the level of VRA violations. They are facially non-discriminatory and she did not contend that they were enacted with discriminatory intent; they serve legitimate interests in promoting the integrity of elections; and any racial disparities they cause are modest or speculative. The majority opinion observes that if provisions like these run afoul of the VRA, so could just about any State voting rule.

Even voting rights activists recognized the weakness of the challenge to the Arizona rules. One described the rules as “relatively tame” and noted that some advocates were unhappy that the DNC pursued this case aggressively. Notably, the Biden Justice Department submitted a letter informing the Supreme Court that it “[did] not disagree with the conclusion” that neither rule violated the VRA. (President Biden’s condemnation of Brnovich is thus at odds with his own lawyers.)

Brnovich will have a major impact on challenges to voting rules recently enacted by other States such as Georgia. The Court sensibly observed that any act of voting necessarily imposes some burden on voters and that mere inconvenience cannot be enough to violate the VRA. It noted that most State voting rules in place at the time the VRA was enacted required voters to appear in person on a single election day at a designated polling place; voting by mail was allowed only in limited circumstances. The Court expressed doubt that in enacting the VRA, “Congress intended to uproot facially neutral time, place, and manner regulations that have a long pedigree or are in widespread use in the United States.”

Most States that have recently amended their election laws, including Arizona and Georgia, still have voting regimes that are more liberal than those widely used when the VRA was enacted. For the most part, their recent changes tighten up voter-friendly flexibilities put in place after the VRA instead of imposing novel restrictions on voting.

Brnovich also debunked the rote contention by critics that State efforts to prevent fraud and enhance the integrity of elections are essentially unjustifiable absent proof of existing widespread fraud. The Court affirmed that preventing fraud is a “strong and entirely legitimate state interest” and added the common-sense observation that “it should go without saying that a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”

The Justice Department’s challenge to recently enacted Georgia voting rule changes is a prime example of a lawsuit that was problematic before Brnovich and is now almost sure to fail. Like Arizona, the voting rule changes made by Georgia are generally unremarkable and similar to those of many States. Bizarrely, the Justice Department rushed to file this lawsuit just days before the Brnovich decision, which it knew was imminent, probably anticipating its outcome.

In addition to stretching the VRA, challengers to recently enacted State election laws who focus on voting rules are barking up the wrong tree. Studies suggest that changes to voting rules (unless truly draconian) have little if any effect on voter turnout. Citizens who are motivated to vote will continue to do so, adapting to the changes and accepting any added inconvenience. Conversely, inconvenience is not a major reason why chronic non-voters fail to show up at the polls; the main reasons are cynicism and apathy. (See here and here.) A more legitimate potential concern than how votes are cast is how they are counted. Several States have made election law changes that could subject vote-tabulation processes to greater political influence. Those who sincerely care about ensuring that our democracy works would do better to train their sights on this aspect of the new laws.

The commission proposed in H.R. 3233 to investigate the January 6, 2021 attack on the U.S. Capitol could make major contributions to assessing the chaotic events of that day and recommending steps to avoid a recurrence. Most important, the commission could develop an accurate, comprehensive narrative of what actually took place and, hopefully, get to the bottom of the epic law enforcement failures that allowed a mob to take over the Capitol and temporarily prevent the Congress from executing its constitutional responsibilities. Perversely, an unwarranted fixation on Trump and disingenuous Republican objections may doom the commission legislation. This would deprive the public of valuable insights into the January 6 fiasco that an independent commission—and perhaps only such a commission—could provide.

The January 6 attack on the United States Capitol was a huge affront to our democracy and a severe national embarrassment. Clearly, many aspects of the events of that terrible day cry out for thorough, objective investigation. A bill (H.R. 3233, 117^th Cong.) to establish a commission to investigate the January 6 attack was developed through bipartisan negotiations in which Democrats made significant concessions from their original proposal. In terms of structure and staffing, the compromise version closely follows the model of the successful 9/11 Commission. The bill recently passed the House with significant bipartisan support (35 Republicans) despite the opposition of Minority Leader Kevin McCarthy and other House GOP leaders. The bill faces an uphill battle in the Senate where Minority Leader Mitch McConnell as well as a number of other Republican senators have announced their opposition.

An all too familiar and politically dubious phenomenon underlies Republican opposition: continuing fear of Trump. Many Republicans still feel the need to appease Trump; others simply want to avoid rehashing his outrageous conduct relating to the January 6 attack. No doubt a particular concern for McCarthy is being pressed to testify about his January 6 phone call with Trump in the midst of the attack. (To be fair, Democrats surely relish the prospect of a commission keeping Trump’s transgressions in the public eye.)

Fixating on Trump in relation to the commission, however, is both ironic and perverse. It is ironic because the commission probably would not develop much new evidence about him. It is perverse because defeating the commission bill based on political concerns over Trump would deprive the public of much potentially useful work on other January 6-related subjects that the commission—and perhaps only such a commission— could accomplish.

Trump’s conduct obviously is a legitimate subject of inquiry and needs to be pursued. Practically speaking, however, there is little that the commission stands to contribute on this front. In typical Trump fashion, his outrageous conduct on January 6 and the days and weeks preceding it occurred mainly in full public view; it is already widely known and notorious. Indeed, it was enough to justify his impeachment and draw strong condemnation even from Mitch McConnell. The commission might unearth some further details, such as exactly what transpired in the Trump-McCarthy phone call, but it would be hard pressed to develop fundamentally new insights. Trump and his allies would likely stonewall the commission, and the commission probably would run out of time to force their testimony before the year-end deadline for completion of its work. Additionally, an investigation focused intensively on Trump would undoubtedly bog down the commission in partisan discord and distract from more fruitful lines of inquiry.

There are two areas in which the commission should be able to make more important contributions. One is developing a comprehensive, coherent, and accurate understanding of what actually transpired before, during, and in the wake of the attack. Thus far, accounts of the chaotic events of January 6 are fragmented and often conflicting. An even more important contribution by the commission would be to sort out and analyze the monumental intelligence, security, and operational failures that allowed a mob to seize the Capitol building and temporarily bring Congress’ functioning to a halt—specifically, its constitutionally mandated duties relating to the presidential election.

The law enforcement issues relating to January 6 have been obscured by conflicting accounts, obfuscations, recriminations, finger-pointing, and deflections among the many government entities involved. There is a compelling need to penetrate through all of this in order to gain an understanding of how the massive security breakdown occurred and how to ensure that it never happens again. Congress itself is ill suited to do this investigating since the most prominent entities involved (Capitol Police, House and Senate Sergeants at Arms) operate under its direct responsibility. It is also likely that the actions of individual Members of Congress will come under scrutiny. An independent body outside of Congress thus appears to be the only source capable of credibly investigating and resolving these issues.

Given our hyper-polarized times, it is reasonable to question whether a commission whose members are appointed by Democratic and Republican politicians could function effectively on a bipartisan basis and produce a credible product. At the very least, however, the potential benefits of a January 6 commission surely justify giving it a shot. Here’s hoping that ten Republican senators find the courage to buck their craven leadership (as 35 of their House colleagues did) and push the commission bill over the finish line.

Donald Trump is toxic to the Republican Party and the American political system. Any future role for him either as candidate or kingmaker can only do further damage to our already badly fractured politics. Yet elected Republicans still try to ignore his outrages, or even worse, seek to appease him. These strategies are not only unprincipled and cowardly but politically fraught. Until Republican leaders muster the courage and common sense to confront Trump’s lies, he will remain a serious threat both to their party and our democracy.

House Republicans are poised to remove Liz Cheney from her leadership position for daring to speak the truth about Trump. This latest episode began when Trump declared that the 2020 presidential election, which he still falsely claims was stolen from him, “will be, from this day forth, known as THE BIG LIE!” Cheney responded with the obvious truth that the election was not stolen, adding that anyone making such a claim is spreading the real “BIG LIE” and “poisoning our democratic system.” She doubled down in an op-ed urging Republicans to “steer away from the dangerous and anti-democratic Trump cult of personality.”

Rep. Anthony Gonzalez, one of Cheney’s few supporters, wryly observed: “If a prerequisite for leading our conference is continuing to lie to our voters, then Liz is not the best fit.” Her likely replacement, Rep. Elise Stefanik, is clearly a better fit from this perspective. Stefanik has become a Trump acolyte who shamelessly espouses his lies. However, while purging Chaney may suit the exigencies of the moment, such pandering to Trump does not bode well for the future of the Republican Party or the broader political landscape.

Most elected Republicans surely recognize the truth of what Cheney said. Many no doubt share her concerns as well as her distain for Trump. However, they are paralyzed by fear of antagonizing Trump and his perceived formidable base of hard-core supporters. In this, Republicans fall into two camps: those, like Senate Minority Leader McConnell, who struggle to turn a blind eye to Trump’s continuing outrages in the hope that he will somehow fade away; and those, like House Minority Leader McCarthy, who actively embrace and appease Trump in the apparent belief that he is still a political asset. Both strategies are, of course, unprincipled. They are also unlikely to succeed. What they probably will do is further embolden Trump, thereby creating more problems for their party (and the rest of us) going forward.

As a matter of principle, the case for repudiating Trump is open and shut. Republicans can point to some noteworthy accomplishments during Trump’s presidency. As Cheney notes, however, the problem is Trump himself. Trump is a deeply flawed individual who spent four year proving himself morally and temperamentally unfit to be president. He lied incessantly, violated minimal norms of presidential behavior, and governed erratically. He relished being a polarizing figure and made no effort to reach beyond his base. He ultimately failed because he was too undisciplined and self-absorbed to be the leader the Nation needed during the COVID-19 crisis.

Trump reached his nadir in the aftermath of the 2020 presidential election with his bald- faced lies about widespread fraud and his encouragement of unconstitutional efforts to overturn the election result. These actions led to his second (and more serious) impeachment, which would have justified conviction and removal had he not already left office. Even McConnell declared Trump “practically and morally responsible for provoking” the January 6 attack on the Capitol with his “wild falsehoods,” describing Trump’s actions preceding the riots as “a disgraceful dereliction of duty.” He added that once the riots were underway, Trump failed to “take steps so federal law could be faithfully executed, and order restored,” and instead, “watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!”

(McConnell has since reverted to his trademark cynicism and hyper-partisanship. When asked recently whether he would support Trump if he was the Republican nominee in 2024, McConnell replied “absolutely.” Likewise, McCarthy initially urged Trump “to accept his share of responsibility” for the attack on the Capitol, but quickly resumed his obsequiousness toward Trump.)

The current Republican strategies for dealing with Trump are politically short-sighted as well as unprincipled. While they can sideline Cheney, Republicans cannot avoid a reckoning over Trump indefinitely. As the next elections approach, their candidates will surely be pressed hard either to repudiate or embrace him both by their Democratic opponents and by Trump himself. Trump, of course, will insist that earning his support requires first and foremost endorsing his lies.

It’s hard to envision siding with Trump as a winning political strategy in any election contest that turns on voters beyond his base. Trump left office as one of the most unpopular presidents in recent history. He scored the lowest first-term average approval rating of any modern president (41%), and fell into the 30’s at the end of his term. Not only was he one of the few recent presidents to fail reelection but Republicans lost control of both the House and Senate on his watch. His tantrums are widely blamed for Republican losses of the two Senate seats in Georgia runoffs. There are indications that he is losing ground even among Republicans since leaving office.

Trump particularly figures to be an albatross in the 2022 Senate elections. Six of the nine Senate races currently rated as potentially competitive are in states Biden won in 2020. Continued allegiance to Trump will probably also impede Republican chances of regaining the presidency in 2024. Even if Trump won the Republican nomination, he would have little chance of being elected again. It’s equally doubtful that a would-be Trump clone such as Sen. Hawley or Cruz could win.

A better political strategy for Republicans is to focus on policy positions likely to appeal to a broader range of voters than Trump’s base and to promote candidates who don’t carry Trump’s massive baggage. Trump resonated with millions of disaffected voters who are not faring well economically and feel that the elites of both parties ignore their interests. While this constituency is often denigrated as consisting only of angry “working class” whites, it is coming to include more minorities as well. Candidates who appeal to these voters in a less divisive way than Trump could have even greater success. Such candidates could also attract the many voters who lean toward traditional conservative policies and values or disfavor liberal overreach but couldn’t bring themselves to pull the lever for Trump.

The first step is for sensible Republicans, indeed all non-masochistic Republicans, to just say no to Trump.

Criticism of the new Georgia election law is wildly exaggerated and bears little resemblance to its content. While the motives underlying the law may be suspect, its provisions are unremarkable and similar to those of other states. It contains nothing that plausibly resembles “voter suppression” or “Jim Crow” and is unlikely to deter citizens interested in voting. On the other hand, politicization and misrepresentation of the law could further discourage those chronic non-voters who are already turned off by our fractured politics.

Donald Trump is gone but our polarized, hyper-partisan, and often dishonest political discourse continues. One example is the furious attack on a recently enacted Georgia election law by Democrats and much of the media. They portray the law as a racist voter-suppression measure that is equivalent to, or even worse than, the notorious “Jim Crow” laws that once prevailed in the segregated South. President Biden led the charge with gross exaggerations and outright falsehoods about the law that would be the envy of Trump. He absurdly described the law as “Jim Crow on steroids,” mischaracterized a provision dealing with water for voters, and repeatedly asserted the patently false claim that the law reduces voting hours. (It actually expands them.) He strongly encouraged Major League Baseball to move its all-star game out of Georgia in response to the law, which it promptly did. Taking their cue from such polemics, a number of corporate executives also condemned the law.

An examination of the content of the law tells a different story. The most remarkable thing about the Georgia law is how unremarkable it is. Like every state election statute, the Georgia law strikes a balance between ease of voting and safeguards to ensure the integrity of the vote. It contains provisions that make voting more convenient as well as provisions that impose new security-related requirements on voters. (See, e.g., here, here, and here.) Most provisions of each kind resemble those found in the laws of many other states, both “red” and “blue.”

Here are some of the provisions that have encountered the most withering criticism:

• Applications for mail-in ballots will not be sent automatically to all registered voters. Some states send unsolicited applications to all voters; most do not.
• The earliest date for requesting mail-in ballots is reduced from 6 months to 78 days before an election. Whatever the reason for this change, 78 days seems more than ample time.
• A numerical ID (e.g., driver’s license number) is required for mail-in ballots, as opposed to relying on more time-consuming and subjective signature matching to verify them.
• Early voting in runoff elections is reduced from three weeks to one week, which seems adequate since runoffs involve fewer candidates and ones who are already familiar to voters.
• Drop boxes for depositing completed ballots, which were not allowed at all before 2020, are permanently authorized but they are limited in number, must be located inside government offices, and are available only during regular office hours. The latter two provisions obviously enhance security over the open-air, unmonitored drop boxes that were available 24-7 during the 2020 election.  
• Non-election officials cannot give food or water to voters within 150 feet of polling places. This provision has been widely seized upon by critics and mischaracterized as an inhumane “ban” on water for voters stuck in election lines, particularly minority voters who tend to face longer lines. (E.g., here.) It is a variant on laws in most states that prohibit partisan electioneering within certain distances of polling locations. The Georgia law specifically authorizes election officials to make water available to voters. The law also contains several provisions aimed at the truly humane and more important goal of reducing voter wait times.
• The law provides the state greater authority over local election officials. Cynical critics assert that this will enable state officials to fraudulently alter voting results. Proponents view these provisions as enhancing accountability for the efficient conduct of elections, such as by reducing voter waiting times and tabulating votes more quickly.

The above provisions and others highlighted by critics seem reasonable on their face and do not  appear to impose significant barriers for voters, minority or otherwise. (Assertions that minority voters are less capable of complying with voting rules are condescending if not themselves racist.) None of the provisions plausibly resembles “voter suppression” or “Jim Crow.” It is noteworthy that Georgia election official Brad Raffensperger, who was widely praised for his honesty and courage in rejecting Trump’s false claims of election fraud in 2020, strongly supports the law. He equates the disinformation being spread about the law to Trump’s outrageous disinformation campaign.  

In one of the few insightful media contributions, New York Times election expert Nate Cohn observes that the Georgia law is unlikely to significantly affect turnout and could even increase it. He concludes: “In the final account, it will probably be hard to say whether [the law] had any effect on turnout at all.” Citing several studies, Cohn points out that convenience of voting is simply not as important as often assumed because voters can readily adapt to most requirements.  

The intense controversy over the Georgia law stems less from its substance than from false narratives promoted by both political parties. Many Republicans shamefully embraced Trump’s false claims of widespread fraud in the 2020 election. With considerable justification, Democrats view the Georgia law and similar initiatives in other states as a response to Trump’s “big lie.” However, Democrats go to the other extreme and treat the absence of proof of widespread voter fraud as somehow meaning that most election security measures are per se unnecessary and therefore must be efforts to suppress the vote. In this regard, they are pushing legislation known as the “For the People Act” (H.R. 1 and S. 1, 117^th Cong.) that would largely federalize election procedures and supersede many security features of state law.

Political strategies over election law also have less to do with citizens who want to vote than the approximately one-third of citizens eligible to vote but who show no interest in doing so. Ironically, these competing strategies (Republicans favor security; Democrats favor ease of voting) flow from two dubious impressions that both political parties share. One is that most chronic non-voters would favor Democrats over Republicans. However, studies suggest that they would likely add fairly equal shares of Republican and Democratic votes. The other is that making voting even easier than it is now would get many of these folks to the polls. However, opinion surveys indicate that inconvenience is not a major reason why they decline to vote. Instead, the main reasons are cynicism regarding our political system and simple lack of interest. The false narratives and misimpressions now indulged by both parties and abetted by the media serve only to re-enforce the cynicism and apathy of these non- voters

If our politics were less dysfunctional, both parties would abandon their false narratives and work together to craft neutral election rules that ensured both ease and security of voting. They could then rely on promoting their respective policy agendas as their primary means to attract and retain voters.

The textualist case against trying Trump is compelling. A straightforward, holistic interpretation of the Constitution’s impeachment provisions offers no support for including persons other than specified officeholders. Proponents of extending impeachment to former officials take isolated constitutional provisions out of context and read too much into them. Originalist considerations also weigh against trying him. While former officials were impeachable under English law, the framers of the Constitution departed fundamentally from the English model regarding persons subject to impeachment. Historical and policy arguments favoring inclusion of former officials are weak at best, and in any event, cannot override the plain meaning of the constitutional text.

In the final analysis, three key points cannot reasonably be disputed:

• The Senate would try Trump not as President but as a private citizen.
• The Constitution grants Congress no power to discipline private citizens; that is the exclusive function of the justice system.
• There is no clear basis (to say the least) to read into the Constitution a sweeping exception for former presidents and the many other private citizens who once held public office.  

The second Trump impeachment project is losing steam politically. Forty-five Republican senators recently voted against a trial, thereby confirming that conviction is out of reach. The Biden Administration and Senate Democrats show little enthusiasm for this exercise and are looking for ways to get it over with as quickly as possible. Meanwhile, debate over the constitutionality of continuing the impeachment process is intensifying. New op-eds pro and con appear daily (some referenced here). One recent statement in support boasted 150 signatures. While proponents of going forward have stronger numbers, they have the weaker case.

Textualist arguments

Proponents struggle to overcome the seemingly clear language of the Constitution limiting impeachment, trial, and conviction to incumbent officials. Article II, section 4 of the Constitution delineates those persons subject to impeachment as follows:

“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Trump obviously no longer fits this description. He will not be tried or convicted as “President” and he cannot be “removed from office” since he holds no office. Thus, Article II, section 4 is now inapplicable to him by its express terms. The constitutional requirement that the Chief Justice preside “when the President of the United States is tried” affirms that Article II, section 4 means what it says and does not extend to former presidents. The framers included this requirement to avoid the conflict of interest that would arise if a president’s potential successor, the vice president serving as president of the Senate, presided. This applies only if the “President” being tried is the incumbent. Indeed, Chief Justice Roberts will not preside at a second Trump trial.

Proponents rely on another constitutional provision as authority to proceed against him. Article I, section 3, clause 7 states:

“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” 

They maintain that while a former president cannot be removed, disqualification remains possible. However, they read far too much into the provision. The language referencing disqualification is on its face nothing more than a limitation on “judgments in cases of impeachment” under Article II, section 4. It leaves Congress the option to add disqualification to removal, which follows automatically upon an impeachment conviction, but prohibits Congress from imposing any further sanction. The language gives no hint of conferring additional, free-standing jurisdiction on Congress to impeach and disqualify anyone other than a person who is subject to and removed under Article II, section 4. It says removal “and” disqualification, not removal “or” disqualification.

Several proponents take a different tack. They concede that only incumbent officials designated in Article II, section 4 are impeachable. However, they maintain that the Trump case can go forward because the House impeached him before his term expired. While the House had jurisdiction to impeach Trump during his presidency, how can the Senate act now that he is no longer in office? They find this authority in the Senate’s power under Article I, section 3, clause 6 to try “all” impeachments.

This is too heavy a lift for the word “all.” It cannot be taken literally to mean that the Senate has power to try whatever impeachments the House sends its way. The Senate dismissed the very first impeachment it received for lack of jurisdiction. (See below.) The most natural reading of Article I, section 3, clause 6 is that it does no more than assign the Senate sole and exclusive responsibility to try impeachment cases. It cannot reasonably be construed to enlarge the Senate’s authority to try impeachment cases or to convict anyone beyond the scope of Article II, section 4. The Constitution requires a two-step process of impeachment by the House and conviction by the Senate to impose any sanction. While Trump was subject to the House’s impeachment power as president, the fact remains that he is not now an officer subject to the Senate’s power to try and convict under the plain terms of Article II, section 4. It’s hard to see how the House’s jurisdiction has any bearing on the Senate’s.

One other, rather facile, argument is that the disqualification sanction, when imposed, applies only to former officials since any impeached incumbent is automatically removed from office by virtue of an impeachment conviction. But this ignores the obvious point that a valid impeachment conviction is prerequisite to disqualification of anyone and begs the question of how a former official is subject to Senate conviction under Article II, section 4.

In sum, the natural and holistic interpretation of the language and structure of the Constitution’s impeachment provisions from a textual viewpoint is straightforward: Article II, section 4 is the key substantive provision. It establishes who is subject to impeachment, trial, and conviction; states the grounds for impeachment; and mandates removal from office upon conviction. The other constitutional provisions cited above set limits and establish impeachment processes, but they do not expand the jurisdiction or authority of Congress beyond what is stated in Article II, section 4. Proponents of going forward read these other provisions in isolation and out of context, exaggerating their significance in the overall constitutional scheme.

Originalist arguments

Many proponents, including some conservatives, argue that reading former officials into the  impeachment language is supported by the public meaning of impeachment at the time the Constitution was adopted. They assert that the framers of the Constitution looked to the English model and understood that former officials were impeachable under English practice. One academic maintains that it would have been “obvious” to the framers that the impeachment power covered former officials since they “imported” this power from England. The proponents note further that the English case of Warren Hastings, who had been impeached as a former official, was ongoing at the time of the constitutional convention and was referred to by the framers.

The originalist argument might have some force if the framers had imported the English impeachment power wholesale, but they did not. While they adopted some English features (grounds for impeachment, indictment by one chamber of the legislature and trial by the other), what they wrote into our Constitution bears little resemblance to the English model on the central issue here: who is impeachable.

The English Parliament of yore had power to impeach “any peer or commoner.” Thus, its impeachment power reached not only incumbent government officials but also former officials as well as private citizens having no current or previous connection to the government. Punishments also extended well beyond removal and disqualification up to imprisonment or death. Impeachment was one of several tools by which Parliament could inflict punishment of any kind on any citizen. Another tool was the bill of attainder. Thus, Parliament exercised virtually limitless power to dispense justice to perceived wrongdoers. It once went so far as to have a deceased former official exhumed, hung, and beheaded.   

The framers took a fundamentally different approach by limiting impeachment to specified government officials and restricting its consequences to the non-lethal and largely remedial sanction of removal with the option of disqualification. In a total departure from the English model, they eschewed any role for Congress in disciplining private citizens. The circumscribed impeachment power clearly excludes private citizens and Article I, section 9 prohibits bills of attainder.

Actually, the understanding of the framers regarding impeachment of former officials is unknowable since they never discussed this subject during their deliberations. (The framers’ references to the Hastings case focused on the grounds for impeachment, not the fact that he had left office.) If any inference can be drawn, however, the more plausible one given the framers’ much narrower view of impeachment than the English is that they would not have envisioned it applying to any private citizens, even those who were once government officials. Proponents also note that some states provided for impeachment of former officials in the pre-Constitution era. However, they did so by explicit language in their governing law. Presumably, the framers of the federal Constitution would likewise have included explicit language if they meant to follow this model.

Congressional precedent

Proponents point out that Congress has in fact impeached and tried former officials. This is true, but the precedent value is limited. There are only two cases in the history of the United States in which the Senate tried officials who had resigned; neither resulted in conviction. One, the very first impeachment, involved a former senator, William Blount, whose case was dismissed by the Senate for lack of jurisdiction. It’s unclear whether the dismissal was based on the grounds that he was no longer in office or that senators were not subject to impeachment. The other involved an ex-secretary of war, William Belknap. After lengthy debate, the Senate voted 37-29 that he was subject to impeachment. However, lingering doubt over his impeachability was the decisive factor in Belknap’s acquittal.

These two cases also represent the exception rather than the rule. Congress usually ends impeachment proceedings if the official subject to them resigns. One prominent example is Richard Nixon. Furthermore, Congress has never before attempted to try any official after completion of his term. In any event, Congress’ assertion of power to impeach and convict former officials does not make it so. The courts would have the final say. While courts steer clear of reviewing how Congress exercises its impeachment authority, they probably would adjudicate a lawsuit challenging whether such authority existed in a particular case.

Policy arguments

Proponents of impeaching former office holders rely heavily on policy arguments. They claim that the value of disqualification by impeachment as a deterrent and accountability mechanism would be lost if officials could escape it by resigning, or as here, if the misconduct occurred too late in an incumbent’s term to allow completion of the process. However, disqualification ranks low on the scale of potential deterrents. The justice system offers far more serious punishments, and the same constitutional provision that limits impeachment remedies affirms that former officials remain subject to those punishments. While impeachable conduct need not be criminal, it usually is. In this case, Trump could possibly face prosecution for actions covered by the specific impeachment as well as his other dubious conduct.

Furthermore, extending impeachment to former officials presents anomalies of its own. It would subject private citizens including ex-presidents and numerous others to potential impeachment and disqualification for the rest of their lives simply because they once held federal office. In fact, there is no obvious limiting principle that would even restrict their impeachment to conduct occurring during their time in office.

Finally, as far as accountability goes, there is another, better way for Congress to hold Trump accountable than a largely partisan impeachment that is bound to fail: a concurrent resolution of censure. This is clearly constitutional and, if strongly but reasonably worded, would surely attract enough bipartisan support to easily pass both houses of Congress. It would also send a more unified and unifying message. Unfortunately, the chances of gaining significant Republican support for this alternative will fade if the dubious and divisive impeachment effort continues.  

The impending second Senate impeachment trial of Donald Trump poses a number of legal, political, and practical issues. One issue flying somewhat under the radar is who will preside. The answer will certainly impact how the trial is perceived and may even affect the outcome.

Chief Justice John Roberts presided over Trump’s first impeachment trial pursuant to Article I, section 3 of the Constitution, which requires the chief justice to assume this role “when the President of the United States is tried.” In the second impeachment, however, Trump will be tried as a private citizen, not as president, thus making this provision inapplicable by its terms. The rationale for having the chief justice preside likewise will not apply. The framers included this provision for the purpose of avoiding the obvious conflict of interest that would arise if an incumbent president’s potential successor, the vice president serving as president of the Senate, presided. This, of course, has no relevance to Trump’s second trial. Kamala Harris, not Mike Pence, will be Vice President and there will be no change in the presidency since removal from office is not on the table.  

Without Article I, section 3, there is no apparent legal authority for the chief justice to preside at the impeachment trial. To the contrary, having the head of the judicial branch preside over the Senate except as specifically required by the Constitution would seem to violate the constitutional separation of powers. Finally, even if Roberts somehow could opt to preside if requested by the Senate, he probably would want no part of this exercise and would respectfully decline. With Chief Justice Roberts out of the picture, Vice President Harris would be in line to preside. Alternatively, if the Biden Administration was reluctant to participate directly in this fraught and potentially distracting endeavor, Senate President Pro Tempore Patrick Leahy or another senior Democratic senator could be chosen to officiate.

The  above considerations are significant in at least three ways. First, the fact that Article I, section 3 is so incongruent here is another indication that the Constitution was not designed for impeachment of former presidents. Second, substituting a politician for the chief justice as presiding officer will detract from the gravitas and objectivity of the proceeding and fuel the notion that it is a partisan exercise. Third, a trial without the chief justice is considerably more likely to survive a motion to dismiss at the outset on the substantial grounds that an individual who has left office is no longer subject to the impeachment process. The chief justice might well grant such a motion but a Democrat in the chair would almost surely reject it. The presiding officer’s ruling, regardless of who makes it, is subject to reversal by majority vote of the Senate. However, a ruling by the chief justice would doubtless carry greater weight with senators (and the public) than one by a political figure.