In a recent post, George F, Will and Truth, I took issue with the estimable Mr. Will over the objective existence of “Truth”, which Mr. Will averred did exist and had in fact been largely unearthed by John Locke and enshrined in the U.S. Constitution, thanks to the efforts of John Madison, while I took the contrary, embracing Mr. Will’s foil, the cynical Thomas Hobbes, who saw men as determined, not by reason but by appetite, appetite for what he called “dominion”, and I closed by quoting Hobbes’ statement regarding the inability of “mere reason” to compel men’s judgment, to wit:
For I doubt not, but if it had been a thing contrary to any man’s right of dominion, or to the interest of men that have dominion, that the three angles of a triangle, should be equal to two angles of a square; that doctrine should have been, if not disputed, yet by the burning of all books of geometry, suppressed, as far as he whom it concerned was able.
Mr. Will and I are one in deploring the source of one of the most brutal displays of the power of this appetite, the sacking of the U.S. Capitol on January 6, 2021:
The first of this century’s national traumas is denoted by two numbers: 9/11. One purpose of, and a sufficient justification for, the second impeachment of the 45th president was to inscribe this century’s second trauma in the nation’s memory as: 1/6.
Although not nearly as tragic as 9/11 in lives lost and radiating policy consequences, 1/6 should become, as its implications percolate into the national consciousness, even more unsettling. Long before 9/11, Americans knew that foreign fanaticisms were perennial dangers. After 1/6, Americans know what their Constitution’s Framers knew: In any democracy, domestic fanaticisms always are, potentially, rank weeds that flourish when fertilized by persons who are as unscrupulous as they are prominent.
Well, if that’s the case, then George’s fellow “originalists”, who think that Johnnie and the other Framers got it right the first time, and that we have naught to do but follow in their footsteps, ought to be good and ready, like George, to find Trump guilty as charged in his second impeachment and ban him from holding any future office.
Except not so much. It seems that the Constitution, whose meaning ought to be crystal clear to any thinking being, doesn’t give all that clear a message to “originalist” experts like Michael Luttig, former judge with the U.S. Fourth Circuit Court of Appeals, and Keith Whittington, William Nelson Cromwell Professor of Politics at Princeton University. In his piece for the Washington Post, “Once Trump leaves office, the Senate can’t hold an impeachment trial”, Mike says that Trump walks even if he’s guilty, while Keith, writing in Lawfare, “Can a Former President Be Impeached and Convicted?”, argues the contrary.
We can kick things off with Mike’s bottom line:
In the end, though, only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him. It is highly unlikely the Supreme Court would yield to Congress’s view that it has the power to impeach a president who is no longer in office when the Constitution itself is so clear that it does not.
The “so clear” bit didn’t sit all that well with Keith:
I have to admit that this conclusion is not nearly “so clear” to me. Let’s begin with the text. It is notable that the Constitution does not explicitly say who is subject to the jurisdiction of the House in the chamber’s exercise of the impeachment power, and it does not explicitly prohibit the impeachment of former officers. Luttig does not explain why he draws the inference he does from the text that he quotes. It is a plausible reading of the text, but it is not necessarily the only or correct reading.
Both men, in my thoroughly undistinguished opinion, engage in some earnest dancing and double talk to avoid confronting the weaknesses in both their particular arguments—though I would give the palm to Luttig on this one—reluctant to admit that perhaps the Framers just didn’t quite think things through on this one, as they didn’t in many others, and there’s no reason to pretend that they did. As Keith points out, Congress has impeached former government officials in the past, and the Supreme Court has also, in the past, expressed deep reluctance to pass judgment on congressional handling of impeachments. As far as I’m concerned, past practice, not to mention the outrageous nature of Trump’s offenses, among the most disgraceful in American history, equaled or surpassed only at the time of the southern succession, are more than enough to justify the congressional attempt both to bring Trump’s high crimes and misdemeanors before the bar and to bar him from holding future office.
It’s true that the Framers were aware of the possibility of impeachments occurring after an official had left office and didn’t expressly provide for such, but they didn’t ban such impeachments either, and, in any case, it is we the living who have the right to interpret the Constitution in a manner that best befits the realization of its ideals—its ideals as we understand them, not as we might imagine they understood them, for that imagined understanding is a mere construct. Regardless of what Justice Scalia would maintain, we have no duty to bind ourselves to a corpse, particularly one he has fashioned in his own image.
There is no question that Donald Trump sought aggressively to maintain himself illegally and unconstitutionally as our country’s head of state, and furthermore no question that if given the opportunity to hold that office again he would conduct himself even more corruptly than he has in the past. There is plenty of evidence to demonstrate that Trump’s only regret over the events of January 6 is that they failed: the mob did not get the opportunity to bully Vice President Pence into voiding President Biden’s victory. Such a man should not be permitted to return to office.
Faced with this record, a distinguished retired federal circuit court judge can find no more honest response than this smirking pirouette:
It has been suggested that the Senate could proceed to try the former president and convict him in an effort to disqualify him from holding public office in the future. This is incorrect because it is a constitutional impeachment of a president that authorizes his constitutional disqualification. If a president has not been constitutionally impeached, then the Senate is without the constitutional power to disqualify him from future office.
Got that? See, you should have impeached him before he committed the crimes you want to impeach him for. But now it’s too late! Sorry! Why would an “honest man”, much less an honorable judge, resort to such gratuitous thimbleriggery, the exaltation of form over substance, the perennial hallmark of legal vice and deceit? Because, in a word, “dominion”. Men (and, certainly, women too) like Judge Luttig, who have devoted their lives (so they said) to the rule of law now prostitute, if not their lives and fortunes, then at least their sacred honor in service of a man whose every deed expresses utter contempt for the law, and it is for this reason they embrace him, for they believe that the odds are stacked too high in favor of the hated liberals for honest men (and women) to hold and maintain dominion; only a monster can. And so they embrace the monster. And so they become him.
Afterwords
Donald Trump has created an enormous split in the circuits of the right. Steven Calabresi, professor of law at Northwestern, and one of the founders of the famously right-wing Federalist Society, fought furiously against the first impeachment of Donald Trump, but exploded in rage last summer when Trump suggested a postponement of the upcoming November election:
But I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.1
Well, one good explosion deserves another, and Volokh Conspiracy dude Josh Blackman, professor of law at South Texas in Houston, a fellow Federalist and perhaps Donald Trump’s most diligent butt boy, raged as well, beside himself that, well, that a Federalist should speak the truth! The people can’t handle the truth, dude! That’s what we’re here for!
Calabresi has also signed a letter, along with 170 other legal scholars, including a number of Volokh folks, arguing that Trump’s second impeachment is constitutional, even though he is now out of office. So what is truth, eh? What is truth? The truth is, Trump is scum, and so are his defenders.
When will the monster in chief finish shedding his skin?