The Constitution says that in cases of impeachment, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." It does not except the president. But what impeachable offenses aren't covered by the new doctrine of immunity?
Barrett's concurrence at least leaves a trial imaginable, but Roberts' controlling majority opinion ends up defining everything one might impeach a president for as either immune from criminal prosecution or impossible to prove because of the new limits on evidence and ban on considering motive.
I'm not saying that the opinion limits impeachment. It doesn't do that.
I'm saying that it renders impossible what the Constitution explicitly contemplates, which is that the same offense would be grounds for impeachment and, subsequently, for a criminal trial.
Yes. Barrett definitely leaves a trial open and gives clear tests to use. The dissents hit home on a major tell—Roberts could think of all the things that were immune but couldn’t for anything that wasn’t immune.
Impeachment is already impossible because a majority of republicans have made it clear that they will absolutely never break with trump and it doesn’t matter what he does.
I believe that presidential impeachment is a dead letter power in the US system anyway.
My point is about the Court opinion's contradiction of a possibility the Constitution explicitly contemplates.
This Court -- these six -- just make things up. It's not originalism. It's not textualism. It's not even emanations and penumbras.
It's right wing Calvinball, and it's a pure, political power play.
We (citizens, not spec. law profs) have to stop responding to political power with legal issues.
In 2011, President Obama assassinated US citizen Anwar Al-Awlaki and his 16-year-old son Abdulrahman (also a US citizen) with no due process. He has never been held accountable.
Also, the Court will interpret anything a Democratic president does that they dislike as an "unofficial act" and therefore subject to criminal prosecution.
i think akhil amar reed captures something very important, which is that the roberts court rewrote article ii, which explicitly states that a president can be held criminally liable after impeachment (and which has long been understood to mean that he can be held liable after leaving office)
I'm not saying that the opinion limits impeachment. It doesn't do that.
I'm saying that it renders impossible what the Constitution explicitly contemplates, which is that the same offense would be grounds for impeachment and, subsequently, for a criminal trial.
If the president literally *can't* commit high crimes and misdemeanors while in office, hard to see any member of his party ever voting to impeach and convict him.
Up until January 6, there had only ever been one vote cast to convict by a senator of the president's own party (Mitt Romeny in 2020). The January 6 trial got all the way to an unprecedented... seven votes to convict from senators of the president's own party.
Party-line votes are the rule.
(Well akshully) I'd say they're the norm. 😀🙃But now "high crimes" don't really exist for the president so we can only impeach on "misdemeanors" and perhaps vibes which is just insane in so many ways
In think we are all arguing the same coin btw
The sole and exclusive power to define was is or is not “high crimes or misdemeanors” is expressly granted to the House for impeachment purposes. Not that this will stop this activist Court from saying otherwise, but it at least should be said for now.
SCOTUS, in my opinion, did not actually have the authority to present an alternative interpretation of the Constitution that is so grossly inconsistent with what it actually says. They did it in the disqualification case and in the immunity case. They tried to break the system.
I mean... with the separation of powers issue, I would think Roberts would still say they can impeach him for whatever they want.
I'm just confused as to why he thinks the judicial separation of powers means courts can't even look at this stuff.
I'm not saying that the opinion limits impeachment. It doesn't do that.
I'm saying that it renders impossible what the Constitution explicitly contemplates, which is that the same offense would be grounds for impeachment and, subsequently, for a criminal trial.
Whatever the original expected application, we have to draw out the implications of the Constitution's structure, understood at a high level of generality through a functional lens
In what world would an impeachment ever happen again when a President is above the law? The President at risk could simply send the national guard to place Senators under arrest as threats to the country. They’d never be allowed to vote.
Crimes independent from his exercise of official powers. Prosecuting Clinton for perjury in the Jones Deposition would still be allowed. And *some* aspects of the J6 stuff are still not-yet-foreclosed-but-who-knows.
I had forgotten that the House did not impeach on the Jones perjury (205-229) but only on the grand jury perjury (228-206), but it's the same analysis. And the more I think about it ... this was perjury around his relations with a WH intern, and POTUS is never off the clock, so ... guh.
Well, not a complete match, actually. Because if they had impeached on the Jones stuff, that was pre-presidential conduct. As to Lewinsky, there's *some* official acts in there (the efforts to get her out of the WH and into the Pentagon) and some not. What a mess.
Biden needs to instruct his justice department to go after the Federalist Society and find the points of coordination that connect them with trumps legal team, Cannon and SCOTUS.
Yeah, these cult member on the Supreme Court only care about their about their treasonous cult leader. They don't care about the Constitution, law and order or America
They are there to serve Trump and the downfall of the USA
Thanks, Heritage and Federalist Societies!
And "according to Law" here is a constitutional term of art meaning that statutory law controls. I.e. whether there is a presidential exception is for Congress, not the court, to decide.
Now why would you go and let “the Constitution says” get in the way of what the GOP wants?
If you ask Roberts he’d say of course you can still prosecute him for any unofficial acts. And if you point out the conflicting language, he’d pat you on the head and say “the law is what WE say it is.”
Those are at least outside the core meaning of "high crimes and misdemeanors," and arguably outside the meaning altogether, and not appropriately impeachable. (Many people thought this was true of Clinton's offenses.)
Here’s how it’ll work.
Dems impeach, get enough votes to convict and remove. GOP president takes it to the far right Supreme Court and they’ll come up with something to say he can’t be impeached.
GOP does the same with a Dem president and the Supreme Court will finally read the constitution.
