Category: United States Law and Policy

Why the first paragraph of the lawsuit brought by Dominion Voting Systems against Rudolph Giuliani is a splendid piece of legal drafting

26th January 2021

You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.

The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.

But once one eventually stops laughing, what should one make of it?

Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.

But principle is – or should be – blind to the person to whom it applies.

So here is a thought experiment.

Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.

And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.

Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?

Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?

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So how can the court tell the good cases from the bad?

How can the court strike the right balance?

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This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:

And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:

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At this point the non-lawyer will ask, understandably: what is malice?

And a lawyer will respond, frustratingly: it all depends.

But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):

“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”

This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.

Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.

Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.

It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.

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Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.

Even when they are threatening pantomime villains.

Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.

Even when those figures are pantomime villains.

The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.

Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.

And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.

What comes of this case cannot be guessed at this time – and most civil claims tend to settle.

But Giuliani has a genuine legal fight on his hands here.

And you would need a heart of stone not to laugh like a drain.

*****

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What codification of Roe v Wade means and why President Biden is right to support it

23rd January 2021

Yesterday the twitter account of the new president of the United States tweeted about abortion rights:

Around the same time the following statement was published by the White House:

“Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

“As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.”

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But what would this “codification” actually mean?

And why should it be welcomed?

The starting point is the 1973 decision of the United States supreme court in Roe v Wade.

That decision held, in effect, that access to an abortion is a fundamental right under the constitution of the United States.

And as a right within the constitution then it is not open to any individual state to prohibit access to an abortion absolutely.

The decision did not preclude regulation of such access by individual states but they could not formally – or practically – ban it altogether.

The ultimate right – subject to regulation – of access to an abortion was that of the woman, and this right could not be removed by any state legislature.

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From a liberal perspective, it does not ultimately matter what the legal basis is for the fundamental right of access to an abortion.

The basis in the United States could be a supreme court judgment, or a provision in the constitution, or a federal law, or whatever.

The important thing is that there is a right and that it is effective and can be enforced.

That said, there is considerable merit in placing the right on a firmer basis than just a supreme court decision.

What a supreme court giveth, a supreme court can taketh away.

And although conservative judges in particular believe (supposedly) in the principle of stare decisis (that is, precedent) they often find ways to distinguish and set aside precedents when those precedents are liberal.

The conservative packing by former president Donald Trump of the supreme court and the federal judicial benches generally mean that it is increasingly likely that Roe v Wade could either substantially limited or even reversed.

And this is partly because the privacy right that the supreme court articulated in 1973 as the basis of the right of access to an abortion is not actually an express provision in the constitution.

It is a right which the 1973 supreme court found to be necessarily implicit in the constitution.

But the general problem with any right judicially implied into a legal instrument by one court is that it is conceivable that another court will not make the same inference.

And although the 1973 judgment was a welcome advancement, few would say that the reasoning of the justices has been generally accepted.

So the judgment of Roe v Wade stands there precariously, awaiting an assault by conservative lawyers and judges.

And if it falls, then the constitutional right of access to an abortion falls with it.

What a supreme court giveth, a supreme court can taketh away.

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So what could be done?

Ideally, one would want a constitutional amendment.

If the right of access to an abortion was explicitly spelled-out in, say, an amendment to the constitution then the position would be placed beyond doubt.

And then no supreme court, however constituted and motivated, could do a thing about it (without breaching the constitution itself).

But this would be unlikely in practice, if not impossible.

There would not be sufficient support in congress and certainly not from a sufficient number of states for the constitution to be amended under Article 5 of the constitution.

The next best thing, however, is codification.

This means congress placing the right on a statutory basis at the federal level.

And this would be possible because, as with any express or implied right of the constitution, there is a basis for congress to legislate.

It is not a perfect solution.

It would still be possible for a supreme court to strike down such an act of congress as unconstitutional as it is possible for any other federal legislation.

But it would fortify the right: for instead of a conservative supreme court only needing to reverse the 1973 judgment it would also require striking down federal legislation that gave statutory effect to that right.

And although a right as fundamental as access to an abortion should never depend on mere majoritarianism – for even if abortion was prohibited by every state legislature there should still be a right of access of a woman to an abortion, as that is the nature of fundamental rights – it can be argued that endorsement by democratically elected politicians would also make it more difficult for judges to overturn the relevant legislation.

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Of course, it is at this stage only a proposal – former president Barack Obama also put forward codification only to not go through with it.

But given the recent packing of the federal benches with conservative judges and what seems to be (and without any serious doubt is) a long-term co-ordinated judicial strategy by conservatives of reversing Roe v Wade, it is prudent for the right of access to an abortion to be codified.

Rousing liberal judgments are wonderful gladdening things – but they are shaky as the sole basis for any fundamental right.

No fundamental right should depend only on a majority of judges at a certain moment in time.

Roe v Wade is a great judgment – at least in its effect, if not its reasoning – but the right it articulates is becoming more vulnerable than it needs to be, and so that right should now be codified.

For what a supreme court giveth, a supreme court can taketh away.

*****

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The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

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Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

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Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

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And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

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The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

*****

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*****

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Comments will not be published if irksome. 

Beggaring the pardons – why the presidential power to pardon needs to be regulated

20th January 2021

Yesterday, on his last full day in office, President Donald Trump is reported as having issued seventy pardons, as well as having commuted seventy-three other sentences.

This in and of itself is not unusual: on his last day of office President Bill Clinton issued about twice as many pardons – including one for his brother.

Issuing a raft of pardons on one’s final day as president is now as established a tradition as the president pardoning a turkey on Thanksgiving.

Of the many things one should be annoyed or disappointed about Trump and his presidency, the mere fact of last-day questionable pardons is certainly not something unique to him.

Yet, Trump’s (actual and threatened) uses and abuses of pardons, and of his power to commute, do warrant further consideration, as they go to the heart of the relationship between the course of justice and the powers of the executive.

In essence: at what point do pardons cease to complement the justice system – showing mercy to those duly convicted – and become something else instead that undermines the justice system itself?

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To beg for a pardon is to plead for forgiveness.

It is just that the phrase ‘I beg your pardon’ is so familiar – it now means little more than ‘can you please repeat?’ or ‘what the Dickens have you just said or done?’ – that we overlook what the word ‘pardon’ actually means – or should mean.

And to forgive an act or omission requires certainty as to what that act or omission was – else how do you know what is being forgiven?

Accordingly a pardon should be as exact in its particulars as an indictment – almost a mirror image.

A person has been convicted of and sentenced for [x] – and so it is [x] that is being forgiven.

The conviction would – or should – still stand as a public and formal finding of criminal culpability – but the convicted person would be relieved from the burden of the sentence.

It would also be implicit that an acceptance of a pardon was an admission of criminal guilt – else how can one be forgiven for a wrong, if there was no wrong in the first place?

All this is what a pardon should be about, from first principle of it being an exercise of forgiveness.

(A commutation of a sentence raises a different issue as an exercise of mercy, and does not require any implicit admission of guilt.)

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But this is not what a presidential pardon is now understood to mean.

A presidential pardon is now, following President Gerald Ford’s pardon of President Richard Nixon for example, something that does not need to be exact in its particulars nor something that carries any implicit admission of guilt.

There does not even need to be a prosecution in place, or even envisaged.

A presidential pardon is now understood to be a ‘get out of jail, free’ card.

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The use of the ‘understood to be’ qualification above touches on another aspect of presidential pardons – they are rarely litigated and so have not (yet) been regulated by the courts or effectively by congress.

There is significant legal uncertainty as to the scope of pardons that depart from the classic model of exactness in respect of the punishment being forgiven.

The pardon for Nixon, for example, may be a political precedent but it is not a judicial precedent.

A pardon the scope of which Ford granted to Nixon may not survive judicial scrutiny.

(The way a pardon presumably would be litigated is when a prosecution appealed a defendant using a (purported) pardon as a bar on proceedings.)

This may explain why Trump did not announce a self-pardon nor Nixon-like pardons for his family and associates. 

(There may also be other practical considerations, such being able to invoke the fifth amendment against self-incrimination, which would be difficult if you were protected from such incrimination.)

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But the lack of regulation and case law raises another non-trivial possibility.

There is a fascinating piece at CNN about ‘secret pardons’.

And it is correct that there is nothing on the face of the constitution that requires a pardon to be publicly announced when it is granted.

Trump has also not complied with other conventions when granting pardons, and so there is not inherent reason why he would not flout the convention that a pardon be publicly announced.

If this happened, the first we would ever know of such a pardon would be if and when it was raised by a defendant as a bar to proceedings.

By which time this presidential term of Trump will be long gone.

And what could be done? 

Even impeaching Trump again (and again) would be pointless.

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As was once averred, power tends to corrupt and absolute power corrupts absolutely.

And so it is not surprising that it is in the two areas where an executive has, in effect, absolute power – the bestowal of honours and the granting of pardons – that there is corruption.

Those with political power will always tend to do what they can get away with, unless they are checked and balanced.

(The principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.)

On the face of the constitution of the United States it would appear that the power to grant pardons is absolute.

Yet such an absolute power would make a nonsense of the careful separation of powers set out in the constitution generally, and of the express obligation of the president that he or she ‘shall take Care that the Laws be faithfully executed’ (Article II, section 3) in particular.

All because there has not yet been regulation of this power does not mean that a supreme court or congress may not one day set out the scope of the presidential power of pardon that accords with the constitution as a whole.

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If the word ‘pardon’ has drifted in meaning, so has the word ‘beg’.

It does not only mean ‘to plead’ – but also in the form ‘to beggar’ it can mean broadly ‘to reduce in value’: to ‘beggar belief’ is to say a thing is not worthy of belief, and to ‘beggar thy neighbour’ is to seek to aggrandise at the expense of a competitor.

In this way, Trump’s (actual and threatened) pardons – and other presidential pardons – can be seen as beggaring pardons.

But begging your pardon for that pun, there is now a compelling case for placing the power of presidential pardons on a basis so that they remain exercises of mercy to complement the course of justice, rather than undermining justice itself.

Such a congressional act or supreme court decision would be one good way for the presidency of Donald Trump to be remembered.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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Comments will not be published if irksome. 

With a Brexit deal in place, Cummings gone, Trump going, constitutional law may become less exciting – but constitutional law will be no less important when it is dull

19th January 2021

To warn against ‘complacency’ is a loaded statement, for no sensible person ever says ‘let us be more complacent’.

Similarly, no sensible person will say ‘I think we should be less vigilant’.

(Both statements are illustrations of the late Simon Hoggart’s ‘law of the ridiculous reverse’ (see here and here).)

But even though such warnings can be empty statements, citizens will still tend to drop their political guards.

In the United States, Trump leaves office tomorrow and his presidential term ends by automatic operation of law, and he faces a senate trial on his impeachment.

Trump has also lost access to his preferred social media platforms.

Here in the United Kingdom, the prime minister no longer has the constant push towards extraordinary constitutional and policy behaviour from former aide Dominic Cummings and other former advisors.

And the United Kingdom is now within a sustainable trade and cooperation agreement with the European Union, meaning the legal and policy uncertainty of a ‘no deal’ Brexit was mitigated.

These happenings are such that the temptation for liberals and progressives is to dance like victorious Ewoks and to rejoice as if the thaw has come to Narnia.

And, to certain extent, some bad things have now left the political space.

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But, two things.

First, as the tidal wave of what happened in 2016 in both the United States and United Kingdom ebbs, we are left with an amount of constitutional wreckage.

In the United States, for example, there has been a substantial reconfiguration of the judiciary in a conservative and illiberal direction, the effects of which will last at least a generation.

For the United Kingdom, it has now found itself outside the European Union – with Great Britain if not Northern Ireland outside the customs union and the single market – a mere five years or so after the general election in 2015 where every mainstream party was committed to membership.

And as this blog has previously averred (here and here), it will take at least five to ten years before any application of the United Kingdom (or what remains of it) would be considered by the European Union, and it is likely any such application will not be considered for, again, a generation.

Both of these pieces of constitutional wreckage are now part of the order of things and liberals and progressives will have to get used to their existence.

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And second, at least in the United Kingdom, there are still four ongoing attacks on constitutionalism – that is on the notion that there are things that those with state power should not do, as those things are contrary to constitutional principles, norms and values.

The first of these attacks is by the executive on the legislature – the ever increasing use of discretionary power and secondary legislation that is neither scrutinised nor supervised by parliament.

The second is the attack by the executive and its media supporters on the judiciary holding the government to account – the constant threats (in England and Wales, if not Scotland and Northern Ireland) to those who exercise the supervisory jurisdiction of the high court.

The third – related to the second – is the attack by the executive on the rights and liberties of citizens – either by the attempts to limit substantive rights under human rights instruments or, by procedural changes or the removal of funding, to render such rights as practically unenforceable.

And the fourth is the attack on the checks and balances generally in the United Kingdom’s constitutional arrangements, from the independence of civil servants, diplomats and government lawyers, to autonomous institutions such as the BBC and universities.

An aspect of this fourth attack is the deliberate placing of certain agents of the state beyond or above the law, such as in respect of war crimes or the actions of those engaged in intelligence.

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Few of these ongoing attacks will result in ‘big ticket’ legal cases, where the government provokes and then (one hopes) loses some showdown in court.

These attacks will be quiet but still relentless, and their overall effect will be as significant as any ‘big bang’ constitutional reform.

And it will not be enough to keep pointing out these constitutional trespasses, as until citizens care about such abuses of power, the mere exposure of those abuses is of limited political consequence.

The government will just shrug and commit constitutional trespasses anyway.

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With the likes of Trump and Cummings and a ‘no deal Brexit’ out of the everyday political space, constitutional law is certainly going to be less exciting.

And this is to be welcomed, as constitutional law should not be exciting.

Constitutional law should be dull.

It is not a good thing for the parameters of any political system to be constantly tested as part of partisan – or hyper-partisan – political debate.

But even if constitutional law becomes more dull, it will not be any less important.

It is when constitutional law is dull that the government is more likely to get away with things.

And it may not make much political difference for public-spirited donkeys such as this blog to keep tracking constitutional and other law and policy trespasses, but it is important that it is done anyway.

Being vigilant and avoiding complacency when things become dull is more difficult than when there is loud and bombastic excitement.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.

Suggested donation of any amount as a one-off or £4.50 upwards on a monthly profile.

*****

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome. 

Does the possibility of a Senate conviction after 20th January 2021 mean that President Donald Trump will modify his behaviour for the next few days?

17th January 2021

There is a story from ancient times about a ruler who had installed above their throne a sword that, but for being suspended a single hair, would come down and kill them.

This suspended sword would be a constant reminder to that ruler – or whoever else sat on the throne – of the anxiety of ruling, and of the reality of danger.

The intention was that such a threat would ensure that any person on the throne would always be in exactly the right frame of mind for the challenges of ruling.

This sword of Damocles is now the subject of a familiar phrase – a  phrase so familiar that many will not know the backstory.

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The contemporary relevance of this fable is perhaps obvious.

President Donald Trump has been impeached, but there has not yet been a senate trial for his conviction.

Such a trial is almost certainly not to take place before 20th January 2021 – three days’ time – when this presidential term ends by automatic operation of law.

This delay is unfortunate – as if what Trump did and did not do on 6th January 2021 does not warrant impeachment and removal from office then it is difficult to conceive of what would.

But the delay is not without its advantages.

The first advantage is that it avoids the possibility of an equally swift acquittal – for it cannot  be assumed there would be sufficient support from Republican senators for conviction.

And an acquitted Trump would no doubt be emboldened and perhaps even more dangerous in these last few days of office.

And the second advantage is that the possibility of conviction now hangs over him like a sword suspended by a single hair.

A conviction – or even just a trial trial – after 20th January 2021 could still be consequential for Trump.

This is because there could also be a separate vote to disqualify him from holding office again  – thereby, at a stroke, formally removing the main claim he may have for future political significance.

There could be other votes to remove various benefits that he would have as a former president.

And, for a politician highly conscious of his place in history, he will be the first president ever convicted after impeachment.

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The better behaved Trump is before the 20th January 2021, this argument goes, the less likely such consequences will come to pass.

Alternatively, any recklessness or abuse of powers now will make the sword of a conviction and other sanctions dangle even more precariously.

Of course, this approach assumes Trump to be a rational politician (and this blog has averred previously that Trump’s behaviour can be seen as rational, if taken on its own terms).

But even if there is no rationality, and instead a simple regard of a political bully for the dynamics of political brute force and the power of leverage, the threat of a conviction may still have an effect.

*

Perhaps this is wishful thinking – and that there is nothing which can be done in the last three remaining days to prevent whatever abuses and misuses of power that Trump is still capable of.

But if those abuses and misuses of power do come to pass then at least there is the constitutional consolation prize of an increased likelihood of a conviction, even if it too late to make any practical difference to this presidency. 

The sword of Damocles was both literally and metaphorically a suspended threat, intended to concentrate a ruler’s mind.

And over the next three days we shall see whether the possible conviction hanging over Trump will have a similar political effect.

 

 

The significance of the second impeachment of President Donald Trump is not that so many were in favour but how many were against

14th January 2021

Yesterday the president of the United States was impeached.

That is a sentence that should be neither typed nor read very often, as an impeachment is – and should be – an extraordinary thing.

The power of impeachment exists in a constitution when ordinary political processes are unable to address a particular problem.

This is only the fourth impeachment in the history of the United States, though the second time it has happened to President Donald Trump.

Any impeachment is extraordinary and rare – but what, if any, significance did yesterday’s vote of the house of representatives have?

Did the vote signify either the start or the finish of some thing?

Or was it more an illustration of something already in existence and not likely to go away soon?

Or does it not have any real significance or even illustrative value – and so was just another extraordinary political event to join the clutter of other extraordinary political events of the last four or five years?

*

An impeachment vote, of course, is only one step in the constitutional process of removing a president.

There still needs to be a trial before the senate, and the senate will then either convict or acquit.

A conviction would, of course, be significant.

It would be the first conviction of a president, the previous three impeachments each having ended with an acquittal.

And if the conviction happened before the end of this presidential term then it would also be the first removal of a siting president.

Such an outcome would have a profound significance, being the first and only example in the history of the United States of the constitution being exerted so as to expel the holder of the presidential office.

A conviction by the senate would be the first time the deeper magic of the constitution has been used to crack the stone table of the presidency.

But.

For such an outcome there are two further conditions: (1) the senate has to vote to convict and (2) that vote has to happen in the next six days.

Both of these conditions are capable of being fulfilled, but both currently seem unlikely.

Of course, a senate that recently was able to confirm the appointment of a supreme court judge at speed should be able to deal just as urgently with an impeachment trial.

The indications, however, are that the senate will not commence any trial until 19th January 2021, and that would mean any trial would go beyond the inauguration of the new president, Joseph Biden.

And, unless the senate is back in session sooner than the 19th January 2021, the significance of yesterday’s vote will not be that it lead to the removal of a sitting president.

The stone table of the presidency will remain uncracked. 

*

But what of a conviction after Trump leaves office?

That could still happen even though his term of office would be unaffected.

Such a conviction would (or could) result in Trump’s disqualification from holding and enjoying ‘any Office of honor, Trust or Profit under the United States’.

And this would have the practical consequence of preventing Trump from being elected ever again as president.

(Though similar outcome could be achieved perhaps by a formal holding of some kind – legislative or judicial – that Trump had engaged in insurrection and was thereby barred under section 3 of the fourteenth amendment.)

Such a conviction would be significant – as it would show that constitutionalism still prevailed over the abuse of presidential power.

It would signify that what Trump did (and did not) do on 6th January 2021 was constitutionally unacceptable, and that there should be serious consequences of that constitutionally unacceptable conduct.

But even this profound outcome still depends on a conviction after a senate trial.

*

For both the possibilities set out above, the significance of the impeachment vote is that it has started a process that may, or may not, have a profound outcome.

But what was the significance, if any, of the impeachment vote in and of itself?

What was certainly notable about the vote was that it demonstrated both Democratic unity and Republican division.

Most of the speeches of those on favour of impeachment, and the statements of the ten Republican representatives who voted in favour, matched the gravity of what happened on 6th January 2021.

And that the vote was bipartisan – so bipartisan that Republican support reached double-figures – showed that the president’s misconduct was so serious that it transcended normal partisanship.

This signifies that Trump’s unconstitutional behaviour no longer has the solid support of the Republican party bloc.

But.

At least as significant, if not far more so, was that so many Republican congressmen and congresswomen were steadfast in opposing impeachment, despite the events of last week.

The impression one formed watching the speeches of Republican representatives was that there was nothing – nothing at all – that Trump could do that would be so wrong that it would lead to his impeachment.

That whatever Trump did or not do would always be beyond the reach of constitutional mechanisms.

That when Trump and constitutionalism conflicted, then Trump would prevail.

A number of Republicans expressly dismissed the impeachment as merely an exercise of Democrat partisanship.   

And by doing so, they flipped from partisanship within a constitutional framework to the hyper-partisanship which disregards and denies the primacy of constitutional norms.

This means that rather than the vote signifying either the beginning of a process or the end of a presidency (or of a political career) it was more of a stark illustration of an ongoing problem.

The problem of hyper-partisanship, which is as much a threat to constitutionalism as the storming of the Capitol. 

This hyper-partisanship is, in turn, in the service of populist authoritarian nationalism – the very politics that is perhaps most in need of being constrained by constitutional norms.

And so the ultimate significance of yesterday’s vote to impeach the president may therefore be not so much that there was bipartisan support, but that there were so many in opposition and on what basis.

*****

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Why constitutionalism should be stronger than Trumpism, other populism, and even majoritarianism

13th January 2021

President Donald Trump has never won a national vote.

In 2016 he had about three million fewer votes than Hillary Clinton, and in 2020 he had about seven million fewer votes than Joseph Biden.

What he was able to do in 2016, however, was to win a vote sufficient so as to obtain the majority of the electoral college – and, but for the geographic distribution of the votes in 2020, it is feasible he could have won the electoral college in 2020.

Trump, therefore, is not in this way a majoritarian – his democratic legitimacy does not rest on having obtained a majority of the democratic vote.

His democratic legitimacy rests instead on a device – the electoral college – that is provided for under the constitution of the United States.

And what the constitution of the United States giveth, the constitution can taketh away.

*

The removal of an elected head of government should never be done lightly or easily.

But in any constitutional system there will always be the means by which they can be removed, other than at an election.

Ideally, of course, if the complaint about a government is essentially about its politics or policies, then it should always be a matter for an election.

That is what elections are for.

But there are circumstances other than a dispute about politics or policy merits where the removal of a government, or of a head of government, is appropriate between elections.

And in the United States, the constitution expressly provides two mechanisms for the displacement of a sitting president.

One is the the twenty-fifth amendment where, for whatever reason, the sitting president is incapable of exercising their role.

The other is the impeachment and then conviction of a president for high crimes and misdemeanours.

And theses two mechanisms are, in the case of President Trump and any other president, just as ‘constitutional’ than the electoral college that enabled Trump to become president in the first place.

*

The house of representatives seems certain, at the time of writing, to vote to impeach President Trump in respect of the violent attack on Congress on 6th January 2021.

President Trump is now thereby destined be the quiz answer to the question: which president was impeached twice?

He will also be the president who was the subject of attempts to use both methods of removal – the twenty-fifth amendment and impeachment, – which also must be some sort of record.

As at the typing of this blogpost, it cannot be predicted whether the senate will vote to convict President Trump.

(Of course, whatever happens, the outcome of that vote will then seem as having been inevitable all along.)

But in one limited way, it does not matter whether there is a conviction – the very fact there will be an impeachment is a reminder that, regardless of Trump’s ability to mobilise millions to vote or to incite hundreds (if not thousands) into political violence, there is something stronger than his populism.

*

The priority for constitutionalism should be true even if there was not such a thing as an electoral college and if President Trump had actually won a majority of the popular vote.

For just as constitutionalism should be stronger than populism, it also should be stronger than majoritarianism.

Being able to obtain a vote of [x] + 1 does not, and should not, confer immunity from removal from office whatever the winning candidate or party seeks to do between elections.

Such a majority vote would confer political legitimacy – but that is what it is: political.

Such political legitimacy does not translate to absolute protection against the consequences of wrongs that go further than political or policy disputes.

*

Given the events of 6th January 2021, and the role of President Trump in those events, it is difficult to see why he should not be impeached and convicted.

This is the sort of situation that the power of impeachment is there for.

And there are signals (if nothing more) that a sufficient number of Republican senators may be in favour of conviction.

But even if such a vote for conviction does not come to pass, constitutionalism has not gone away.

The senate may or may not vote to convict.

The fact there is such a vote means that constitutionalism – still – is stronger than Trump and his nationalist authoritarian populism.

The challenge is now to keep it this way – for although constitutionalism has not gone away, neither will Trumpism.

*****

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The violent events of 6th January 2021 should be a turning-point, but what if history fails to turn?

12th January 2021

 

Writing of the effects (and lack of effects) of the 1848 ‘revolution’ in Germany, the historian A. J. P. Taylor once wrote:

‘German history reached its turning-point and failed to turn.’

Identifying a moment in time as a potential turning-point is one thing, but it is quite another for it to actually be a turning-point.

*

Take, for example, seven days before the 2016 referendum when the British member of parliament Jo Cox was murdered by a person shouting ‘Britain First’.

That incident which took place at the most unpleasant moment of the referendum campaign – the ‘swamped’ poster was about the same time – felt as if it should have been a turning-point. 

That the passions and indeed frenzy unleashed by the referendum campaign were out of control, that things had gone too far.

But it was not a turning-point – the referendum campaign quickly resumed – and the murder had no obvious impact.

*

The events in the United States of 6th January 2021 also seem to be a potential turning-point.

In what this blog and others aver was an attempted coup, and what was an insurrection on any view, there was a violent attempt to disrupt an essential constitutional step in the peaceful transfer of power, at the behest of (or at least in the interests of) a defeated politician.

Five people died.

There is currently an attempt, in the last few days of the current presidency to impeach that defeated candidate, President Donald Trump.

At the moment it looks unlikely that the impeachment will result in a conviction in the Senate and that Trump will be removed from office before 20th January 2021, when the presidential term ends by automatic operation of law.

One view is that the events of 6th January 2021 will shock Republican politicians and political supporters of Trump.

That the passions and indeed frenzy unleashed by his attempt to discredit the election result and to hold on to power were out of control, that things had gone too far.

Surely something will be done in response to what happened, in what Der Spiegel regards as a putsch (with Trump as Putschistenführer).

 *

But even if something decisive happens in respect of Trump personally – either that he is impeached or discredited as an individual – this does not directly address the ongoing challenge of Trumpism.

Even after everything in the last four years, 74 million Americans still voted for him to be president.

Indeed, even after the visible manifestation of Trumpism on 6th January 2021, there still seems to be substantial political support for this nationalist authoritarian populism. 

It may not be going away.

*

Contemporaries are often not in a good position to tell whether some dramatic political event is either the end of something, or the start of something, or just an illustration of something.

The quotes in this tweet should be read carefully and in full.

In 1923 many thought that the attempted putsch of the war hero Ludendorff (then a more famous figure than the nationalist authoritarian populist leader who accompanied and then succeeded him) could be dismissed as some delayed after-effect of the great war.

And indeed Ludendorff was to a large extent personally discredited, but the cause for what he stood for certainly was not extinguished, and it was to take power within a decade.

An attempted coup, an insurrection, a putsch – all can be as much a start of something than an end of something.

*

It is easy to warn ‘we should not be complacent’.

(After all, nobody ever says ‘let us be complacent’.)

But liberals and progressives should be careful not to assume that the dramatic violence of 6th January 2021 will convert into some ongoing impediment to Trumpism – even if it converts into an impediment to Trump himself.

Trumpism should be taken just as seriously as a threat to liberal democracy and constitutionalism after 6th January 2021 than before.

The attempted coup, the insurrection, the putsch has not, at a stroke, discredited Trumpism – even if Trump (like Ludendorff) may no longer be the leader of the movement.

All because a tragic event should bring people to their senses, it just as often does not do so.

Sometimes things do meet what should be their turning-point, but things fail to turn.

*****

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Can a presidential pardon be revoked?

11th January 2021

As we enter the last ten days of this presidential term one of the matters being widely discussed is the extent and nature of presidential pardons generally, and the possibility of a ‘self-pardon’ in particular. 

This blog has already looked at the general issue – and on the self-pardon issue in particular, it seems to me to be a logical and legal absurdity.

But this post is about a related issue, which has not yet featured prominently in the debate about pardons: regardless of whether any power to pardon, can a pardon be revoked?

Would it be open to an incoming president to revoke the pardons of President Trump, including any (purported) self-pardon?

*

From first principles, and from a United Kingdom perspective, such a revocation would seem possible.

The power to pardon is, in the United Kingdom, part of the royal prerogative.

And just as no parliament can bind another, it would appear no sovereign can do so either.

The crown can make – and unmake – any treaty whatsoever.

The crown can bestow honours, which in turn can be ‘cancelled and annulled’ by the crown.

And so if these exercises of the royal prerogative are analogous, then it would appear that the sovereign could rescind a pardon – for example if it were wrongly made.

*

Turning to the United States, there are two examples of revoked presidential pardons.

In 1869, we are told by the Congressional Research Service, ‘after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation’.

The case report is here, where you will see that the judge stated in passing:

‘The law undoubtedly is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act.’

More recently, in 2008 President George W. Bush revoked a pardon he had himself granted, because of an outcry.

The New York Times then reported ‘when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.’

Again, the pardon had not been delivered.

*

In both of these precedents the revocation was possible because it had not been completed – the procedural equivalent of dashing to the post room to intercept a letter before it is actually sent out.

Neither of these precedents therefore are directly on the point of whether a pardon, once completed, can be revoked.

The opinion of the judge in 1869 is not binding for, among other things, that was not the issue which the court was being asked to determine.

*

So how would a modern court approach the issue?

In most circumstances, the effect of a pardon would be immediate: a person would be released from their sentence and so on.

And once that person has been relieved from their punishment, then any revocation would raise practical and other issues as to what would happen to the pardoned person.

One can see why it would be unfair that such a pardon was revoked, just as no person should not be punished twice for the same offence.

But what about a (blanket) pardon that is intended to pre-empt any possible prosecution?

Procedurally, the person who (purportedly) received the pardon would (presumably) raise the pardon as a bar to any proceedings.

The court would then (again presumably) examine the (purported) pardon (as in 1869), and if the pardon was valid then there would be would be a bar on the prosecution.

It would be – almost literally – a ‘get out of jail free’ card, which the person would raise in front of a judge.

(Of course, if it were known that a pardon had been given then a prosecution would normally not be brought in the first place – but, if it were brought, this is procedurally how a pardon would act as a bar on any prosecution.)

So, now imagine two fascinating possibilities.

First, imagine a court not accepting such a presented pardon at face value – and applying anxious scrutiny whether such a pardon (even if correct in form) had been within the powers of the president.

And second, imagine a court presented with two formal instruments – one purporting to grant a pardon, and another purporting to rescind it (like the cancellation and annulment of an honour, which reverses an otherwise completed act).

The first of these (delicious) legal puzzles would not be a revocation, of course, but an inquiry as to the legality of an instrument.

The second possibility, however, would require a court to review the possibility of a revocation of a pardon.

We would then see whether the 1869 dictum was a correct statement of the law.

*

The straight answer to the question at the head of the post is, as always with interesting legal questions, ‘we do not know’.

An approach from first principles points (at least for me) in one direction, but the precedent of 1869 (although it is not binding) points firmly in the other direction.

But given the lack of binding authority, it cannot be assumed casually that if a pardon – or self-pardon – is granted by President Trump that it is absolutely beyond the reach of revocation.

We may still get more constitutional excitement from the Trump presidency.

*****

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