Wednesday Writs: Trump’s Impeachment Response, Spellchecked and Explained
L1: Impeachment 2 is ramping up, and the Trump team has issued its response to the House Articles of Impeachment against the former president. The pleading begins in the traditional vein of Trump legal filings, with a typo. The highlights are as expected: He didn’t do it, and even if he did, he can’t be impeached because he is not the president anymore: “Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity…” Further, they argue, such removal is a “condition precedent” to the other consequence of impeachment, the inability to hold future public office.
As to the allegation that he made false claims to the crowd in DC on January 6th regarding the election results, he claims in defense both his First Amendment right to free speech and a denial that the statements were objectively false: “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.” He goes on to deny plainly that his statements about the election results were in error: “…as is his right under the First Amendment to the Constitution [Trump] expressed his opinion that the election results were suspect, as is contained in the full recording of the speech. To the extent Averment 5 alleges his opinion is factually in error, the 45th President denies this allegation.” And it doesn’t matter, because he’s not the president anymore.
Turning to the insurrection at the Capitol, the answer admits that the Capitol building was “unlawfully breached and vandalized,” resulting in deaths and injuries. He does not admit, as alleged in the articles, that the infiltrator’s actions were seditious, stating that “[S]editious acts” is a term of art with a legal meaning and the use of that phrase in the article of impeachment is thus denied in the context in which it was used.” He also denies that his statement to his followers “if you don’t fight like hell you’re not going to have a country anymore” was in any way related to the actions that followed, but rather a call to fight for election security. And it doesn’t matter, because he’s not the president anymore.
Next the Trump team addresses the infamous phone call with Georgia Secretary of State Brett Raffensperger, in which Trump was recorded urging Raffensperger to find him some more votes. Trump admits to the accuracy of the recording, but insists the word “find” has been taken out of context; he claims he meant an examination of the ballots would reveal forged signatures. He otherwise denies any wrongdoing during the call. And it doesn’t matter anyway, because he’s not the president anymore.
To the rather nebulous allegation that “President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States…” the answer is an equally conclusory “no, I didn’t”, adding that he “performed admirably” in his role as president, and served his term “to the best of his ability in comportment with his oath of office.” And it doesn’t matter anyway, because he’s not the president anymore.
The reply goes on to list “legal defenses,” describing the articles as “substantively and facially flawed.” In addition to repeating again that it doesn’t matter, because he’s not the president anymore, Team Trump says that any action by the Senate would amount to a Bill of Attainder1, which would be unconstitutional under Article I. (This is a rather specious argument, which you can read more about here.)
Next, it is alleged that the allegations do not meet the threshold for impeachment, misconstrue free speech, and violate Trump’s due process rights. Specifically, they argue that the House’s “rush to judgment” failed to allow a full and fair investigation or examination of the evidence and did not permit Trump to present his case in the House Chamber: “The actions by the House make clear that in their opinion the 45th President does not enjoy the protections of liberty upon which this great Nation was founded, where free speech, and indeed, free political speech form the backbone of all American liberties.”
Lastly the Trump legal team turns to technical legal arguments about the form of the Articles. Specifically, they take issue with the inclusion of all allegations rather than breaking them out into individual counts. They argue that the House set forth one, broad sweeping article in hopes that some senators who may agree with some, but not all, of the allegations would still vote to convict. Thus, they argue, the senate must be instructed that “if two-thirds of them fail to find any portion of the Article lacking in evidence sufficient for conviction, then the entire Article fails and should be dismissed.”
The Answer concludes that the Articles were deliberately timed to keep Chief Justice Roberts from presiding so that they could “maneuver an ally into the senate chair,” a not-altogether-implausible theory that they argue violates Trump’s due process rights.
And it doesn’t matter anyway, because he’s not the president anymore.
L2: The impeachment managers responded to many of these points in their brief, filed today, and discussed here at OT by our own Michael Siegel.
L3:
Oregon’s law to decriminalize virtually all drug use goes into effect:
The law goes into effect Monday and will be implemented over the next decade by the state officials at the Oregon Health Authority.
Advocates say the pivot will be life-changing for thousands of Oregonians.
“One of the things people misunderstand is how criminalization creates barriers to treatment,” says Kassandra Frederique, the executive director of the Drug Policy Alliance, a national nonprofit dedicated to legalizing illicit drug use. “If we want people to make different choices, we have to give them more options … ending criminalization will do leaps and bounds around ending shame, which automatically opens people up for other opportunities.”
Nationally, others are hopeful this could be the first in a wave of progressive measures that undo years of damage caused by drug criminalization, which disproportionately imprisoned people of color across the U.S.
L4:
UK Prince Harry has won “significant damages” in court over what the papers involved admitted was a “completely false and defamatory story”. The Prince has directed his damages to go to his Invictus Games charity for wounded warriors.
L5:
A judge has again ruled that the Sandy Hook victims can continue their lawsuit against the despicable Alex Jones.
L6:
Supreme Court Justice Clarence Thomas’ wife has been under fire for her comments and social media post surrounding the January 6th attack on the capitol, and now has reportedly apologized to her husband’s clerks.
L7:
We are currently watching one of the more courageous attempts to change someone’s country in Russia, and that country’s dictatorship’s use of the legal system to squash it:
“I very much hope that people won’t see this trial as a signal that they should be more afraid. It’s not a show of strength but a show of weakness,” Navalny told the court, according to a transcript by the news site Meduza. “They can’t put millions and hundreds of thousands in jail.”
“I salute all the honest people all over the country who are not afraid and take to the streets,” he said.
Outside the court, riot police in full battle gear had secured a wide perimeter. Independent news outlets such as TV Rain broadcast live coverage of a passersby being arrested and bundled into police trucks.
Police used similar tactics at a protest in Moscow on Sunday, arresting random demonstrators as they made their way through the city on a march demanding Navalny’s release. Protests have broken out in dozens of Russian cities, from Vladivostok on the Pacific Ocean to Kaliningrad on the Baltic Sea.
Looks like Gamestop is going to end with a lot of people losing their shirts because they got caught up in the hype of s speculative bubble: https://www.washingtonpost.com/technology/2021/02/02/gamestop-stock-plunge-losers/Report
which we mostly totally foresaw, no matter how much well deserved damage it inflicted on hedge funds.Report
My guess is that most of the Robinhood-type buyers of GME made out like bandits, selling off when the short sellers had to cover. Remember, when GME hit nosebleed levels RH and other retail apps prohibited new buy orders, which helped drive the price down, but also prevented the type of people you’re worried about from losing their shirts.Report
What’s interesting to me are the folks who were telling themselves that they were going to ride the stock to the moon… where I’m 100% sure if I’d bought at $4 or even $10 I’d have sold at $40 (Talk about great returns, baby) and looked the idiot when it hit $400. It’s the postmodern problem of not knowing what Moon means.Report
When my wife and I were still dating, we took a trip to Lake Tahoe. We went to a casino one night, within five minutes won $75 , and decided to take our winnings and go.Report
That’s why I try not to win too early in the evening… ruins the fun.
Also, when it’s late, then I can say, hey… that was $300 worth of fun, right?Report
That does not seem to be the case. They seem to have been played in an elaborate pump and dump scheme as the suckers. It is what people want to be true though: https://nymag.com/intelligencer/2021/02/gamestop-wallstreetbets-twitter-populism-progressives.htmlReport
L3 is interesting. I’m looking forward to seeing how things turn out.
If I had to guess, I’d say that a handful of short-sighted entrepreneurs will open up shop and quickly discover that there is a Supremacy Clause thing going on (and, tax issues… can’t forget the tax issues).
This will help things for homeless people to some extent.
The BIG change, if there is going to be a big change, will be in law enforcement. The whole “I detected the distinct odor of drugs, drugs, drugs and knocked on the door” will no longer be allowed to kick off an interaction with the police. I wonder what will replace it.Report
The “War on Drugs” was never about drugs, though it has certainly played out as a war . . .Report
Did I hear a plaintive cry for help?Report
“I heard a man’s voice, raised in anger, and a woman crying. He was clearly threatening the woman. I didn’t know which house it was coming from, so I picked one. I was then attacked by a dog and was in fear for my life. How was I supposed to know that these teenagers were watching The Shining as part of a ‘Black People Review White People Horror Movies’ livestream?”Report
As I understood it during the election, the decriminalization initiative takes any state-court charge of intoxicant possession or use into a medical problem. You will still pay a fee to the court if found in possession or under the influence of an intoxicant, but it’s not a punitive fee and it’s not reported as such on your criminal record. You then get diverted to a treatment facility that is certified by the state for [something something I’m not real clear on the exact criteria] and have to complete a class that meets [something something minimum criteria that again I don’t really know very well]. Then the matter is done.
I didn’t think I needed to fully understand the criteria for treatment to think it’s a good idea and fine-tuning what that criteria might be could be something to address and revise later after some experience is gathered, with the opinions and advice of subject matter experts.
Federal law enforcement and Federal courts will continue to proceed with enforcement of Federal laws. But that sort of prosecution is going to be pretty rare just because there isn’t nearly as much Federal law enforcement in the first place.Report
Hrm. When I read your first paragraph, I think that I see two different disparate impacts.
Someone on the right side of the tracks gets busted. Fee is no problem. Class is no problem if it is also offered nights/weekends. But God help you if your employer finds out that you’ve been diverted to a treatment facility.
Someone on the wrong side of the tracks gets busted. Employers somewhat more likely to be understanding of the whole treatment facility thing but the fee and the class are much more onerous.
Will there be as many busts? I suppose it depends on the fee.
(Oooh, there will be an impact on Civil Forfeiture… that’s going to be interesting.)Report
Both observations are true. But in no care are (state-level) criminal charges going to be brought, which is still a benefit to either the privileged individual who gets found out by a not-understanding employer, or the not-privileged individual who has to struggle to come up with the bucks to pay the fee and pay for the class.
Oregon being Oregon, I suspect judges will be given guidance to waive the fee in cases of indigency and low- or no-cost classes will be available, but those things are a) more likely to be available if at all in urban centers like Portland, Salem, and Eugene, leaving folks from more rural areas SOL; and b) still not complete answers to the accessibility problem.
So it won’t be perfect. But it’ll be an improvement.Report
Yes, it is positive movement. My complaints are more of the form “I hope the positive movement does not stall out” than “this is bad and people who like it are bad”.
I hope that it results in more states saying “we should do that!”
But not if it’s related to, say, fees.Report
L1 (and footnote): Impeachment is not an attainder. If impeachment were an attainder, that means the Framers of the original Constitution authorized Congress to do a thing and, simultaneously, prohibited Congress from doing that very same thing. The only way to interpret the Constitution as being coherent is to assume that these are different kinds of proceedings, which I’m quite confident has substantial history going back into Ye Olde British Common Law.Report
Yeah, the link to Bloomberg there in that paragraph calls out how ridiculous it is.Report
The bill of attainder argument was raised in the Belknap impeachment to assert a narrow reading of the impeachment power. Essentially the argument was that the founders were so wary of the abuses of English trial by legislatures, that the scope of the impeachment power should be strictly construed to only apply to the “President, Vice President and all civil Officers of the United States.” Under this analysis, its extending the scope of the impeachment power to former officials that comes into conflict with the prohibition on bills of attainder.Report
L7: “They can’t put millions and hundreds of thousands in jail.”
Let’s hope he’s right, but the Gulag did.Report
L1:
Roy Cohn was Trump’s role model. I wonder if he thinks he’s hired David Schine.Report
+1Report