Why I Think Presidents Can Be Impeached Even After Leaving Office

A while back, I discussed the potential to impeach a president after he has left office. In my prior post, I concentrated on the practical questions—what factors would have to be in place before Congress would reach the unlikely stage of wanting to impeach an ex-president? The bottom line was that late impeachment is pretty unlikely, but not unimaginable.

In this post, I will concentrate on the legal argument for late impeachability. I will devote rather less space to the argument against it. Both arguments have much to commend them, and they are fleshed out (in excruciating detail) in an article that I published a few years ago, as well as a chapter in the book I am writing. As before, I am not suggesting that President Bush, Clinton, Bush, or Carter be impeached and tried—just that if Congress wanted to do so, they could.

In Article II, Section 4, the Constitution specifies that any civil officer of the United States must be removed from office upon impeachment and conviction for high crimes and misdemeanors. Critics of late impeachability take this to mean that a person must be removable to be impeachable. It's a fair reading of the text, but a cleaner reading is that this clause only means to specify the penalty for sitting officers who are convicted. Under this reading, the clause does not limit Congress's impeachment powers (which anyway are specified elsewhere, in Article I) to cases involving sitting officers.

Opponents of late impeachability often respond to this by saying that if Article II isn't a limit on impeachment, it must mean that anybody can be impeached for anything. While it might be tempting to lobby Congress to impeach Bernie Madoff, though, this is not what impeachment is all about. The history of impeachment in England and America suggest that impeachment is concerned with public offenses by public officials; offenses "which may with peculiar propriety be denominated political," as Alexander Hamilton put it in the Federalist Papers.

In other words, it is the nature of the offense, not the timing of the trial, that distinguishes impeachment. Only officers can commit impeachable offenses. If they commit such offenses, but leave office before Congress can finish the case, that doesn't change the public nature of the offenses, or the appropriateness of having Congress as a forum to pursue them.

Thus, the true interpretive conflict is not between those who would impeach only sitting officers and those who would impeach everyone in the world. Rather, it is between those who see impeachment as protecting the office from the bad guy (which makes removal the key and makes late impeachment pointless) and those who see impeachment as the process for dealing with official misconduct qua official misconduct (which makes removal obviously important, but not the only basis for proceeding).

The Constitution provides for mandatory removal of sitting officers, but it also allows for another punishment: disqualification from holding future federal office. The presence of this other possibility not only makes late impeachment more likely to be worthwhile, it also provides some structural evidence in favor of late impeachability. If someone could avoid disqualification simply by resigning from office—perhaps five minutes before he knows the Senate will vote to convict him—then it would be pointless for the Constitution to have provided the penalty.

Allowing resignations to destroy Congress's jurisdiction would also make a mockery of impeachment's intended role as a form of congressional oversight. Consider that the president cannot preempt the impeachment of his subordinates by pardoning them; the Constitution makes that limit clear. This limit stems from a British case in which the king pardoned one of his ministers (Danby) to prevent Parliament from impeaching—and thereby investigating—the king himself. But if a president is restricted from pardoning away an impeachment, it would certainly be odd if he could preempt an impeachment simply by firing the official in question (and potentially rehiring him immediately onto the White House staff, or some other position that does not require Senate confirmation). Presidents are prickly about submitting to congressional jurisdiction for ordinary investigations, but there is no question that impeachment strips such protections away in a unique manner. Structurally, it makes little sense to say that a president facing impeachment could thumb his nose at congressional oversight simply by resigning, or by committing offenses near enough to the end of his term.

There is also historical evidence to support late impeachability. British precedent loomed large at the Constitutional Convention. At the same time that the Constitution was being drafted and debated, the British were impeaching and trying Warren Hastings, a former governor-general of India. It was a high-profile case, and the Americans drafting the impeachment clauses were aware of it. Impeachment was rare in Britain, and the only other case that century had, like Hastings's, been a late impeachment. American state impeachment practice differed in important ways from the British tradition (significantly, some states not only allowed but actually required late impeachment), but the British influence was clear. The Constitution places several specific limits on impeachment in a conscious attempt to depart from British practice. However, late impeachment—an obvious, significant part of British practice—was left untouched in the text.

In the decades that followed, late impeachment was in the air. John C. Calhoun and ex-President John Quincy Adams both proclaimed themselves susceptible to it. President Grant's corrupt secretary of war, William Belknap, was impeached despite having resigned just prior to the House vote. The House went ahead anyway, and the Senate debated late impeachability for weeks. The debate covered dozens of arguments from the text, history, and structure of the Constitution that I discuss in my article. Eventually, the Senate decided by a majority vote that it had jurisdiction over former officers and the trial went on. Fortunately for Belknap, there were enough opponents of late impeachability that his pursuers failed to attain the two-thirds vote needed to convict him. The vote was close, though, and the result is a precedent for the notion that people can be impeached and tried after leaving office, even if it is hard to convict them.

Since Belknap's case, Congress has dropped case after case—for practical reasons—after the offender resigned. Even as it has done so, however, it has been careful to expressly reserve its power of late impeachment. In these matters, Congress is saying only that these men should not be impeached, not that they could not be.

Would the Supreme Court rule on a challenge to a late impeachment, or would they declare it a non-justiciable "political question"? It depends. That question could fill a whole other post. Suffice it to say that while the Court would defer to Congress here (and while I would vote that way were I on the Court for some reason), there is plenty of room for the Court to declare that Congress had overstepped its bounds, and that a late impeachment is not an "impeachment" within the meaning of the Constitution.

It is unlikely that an ex-president's opponents in Congress would have large enough majorities to convict a president. If the new president doesn't want to prosecute the old one, odds are pretty good that the old president has the support of either a majority in the House or one-third of the Senate too. (Interestingly, the only time in American history in which the party opposing the president had a House majority and a two-thirds Senate majority was during the presidency of Andrew Johnson; it is no coincidence that he was impeached and nearly convicted.)

It is hard enough to get two-thirds of the Senate to support conviction. Once you subtract the votes of the people who think that late impeachment is unconstitutional, it could become impossible. As I discussed in a previous post, several factors would have to line up just right for a late impeachment to go forward. Still, there is a strong case to be made that in the right circumstances, Congress can impeach and try an ex-president.

Posted by Brian_Kalt at 11:19 PM | Comments (0) | TrackBack

Why President Bush Might Not Want to Pardon His Administration: An International Angle

I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.

After listening to Professor Phillipe Sands on NPR's Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands's argument, but listening to him, it did strike me that prosecutions--especially international ones--are more of a possibility than I had previously thought.

Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process--which could have more legitimacy and would avoid sovereignty concerns--remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.

If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.

Another permutation--impeachment of Bush Administration officials after they have left office--looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I'll post more on "late impeachment" in the next few days.)

Again, I'm not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn't realize a few hours ago.

Posted by Brian_Kalt at 01:17 PM | Comments (1) | TrackBack

A New Day Dawning at Justice

As the full measure of lawlessness at the Bush Office of Legal Counsel gets disclosed, many lawyers have anxiously awaited the nomination of a new OLC head capable of repairing the damage. The appointment of Dawn Johnsen is a sign that Obama is serious about righting the ship here. As Prof. Johnsen wrote about the infamous torture memo:

The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.

Unlike the legal academy's many "Professors Strangelove," Prof. Johnsen had the courage to uphold lasting American values in the face of temporary passions demanding their discarding. Congratulations to her on this well-deserved appointment.

Posted by Frank_Pasquale at 04:23 PM | Comments (3) | TrackBack

More on the Roland Burris Appointment: A Response to Amar and Chafetz

Over at Slate, Josh Chafetz and my mentor Akhil Reed Amar have penned what I think is the best argument one can make that the Senate can and should refuse to seat Roland Burris, Illinois Governor Rod Blagojevich's pick to fill that state's vacant Senate seat. The best, but still not enough in my opinion, following up on my earlier post.

The core of their argument is that the Senate can judge the elections and returns of its members, and so "[i]f the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process." They continue that:

To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to "pay to play" early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.

Here's why I think that's wrong.

Their analogy would work if, say, Jesse Jackson, Jr. got appointed over the corruptly excluded Valerie Jarrett. But that's not what is happening here. Go back to the election analogy. Let's say that an election was corrupt. The Senate rightly refuses to seat the winner of the election. Now there is a vacancy. Thus, the governor gets to appoint someone to fill it, and if he does so without any shenanigans that time, it should be OK.

The alternative would be to say that once one bad thing happens, the Senate can force the vacancy to persist until there can be a new and clean election. As my colleague Mae Kuykendall points out, though, the new election wouldn't remove the "irremediable taint" of the corrupt vacancy anymore than a new and clean appointment would. What removes the stain of corruption is a non-corrupt appointment pursuant to state law. As warm-feeling a policy as boycotting Blagojevich might be, I don't read Art. I, § 5 and the 17th Amendment as giving the Senate that authority here. It seems to me that those provisions leave it to state law to determine how vacancies are filled.

The alternative is a situation in which the seat remains vacant until the IL legislature either removes Blagojevich or passes a law stripping him of the appointment power and mandating an election. But surely that puts the cart before the horse. The legislature has had the opportunity to do both of those things already, and has declined to do so.

Put another way, the law is that the governor fills this vacancy. That law was followed here. No one is claiming that Blagojevich broke the law in selecting Burris. In the absence of any such evidence—let alone in the absence of an attempt to even look for such evidence—the Senate cannot legitimately question the "returns" here.

At least Amar and Chafetz have made a plausible legal argument, as opposed to Senator Reid's legally vacant pronouncements. I find it ironic that Reid, a Mormon, is hearkening back to the pre-Powell notion of excluding people from Congress through guilt by association. Back in the day, that illegal approach was used to keep Mormons out of Congress for being Mormons. Senator Reed Smoot was challenged on these grounds, and it took four years of hearings and debate before he was seated. Notwithstanding their hard-to-overstate distaste for the people who sent Smoot to the Senate, the senators eventually let him take his seat.

More relevant for current purposes is that they seated him provisionally in the meantime, and had a real debate about it, instead of reaching their conclusion before he had even arrived.

Posted by Brian_Kalt at 02:17 PM | Comments (14) | TrackBack

Can the Senate Refuse to Seat Blagojevich's Appointee?

Politico and MSNBC are reporting that the Senate Democratic leadership is indicating its refusal to seat Roland Burris, who Illinois Governor Rod Blagojevich today indicated he will appoint to fill President-Elect Obama's vacant Senate seat.

I'm not sure where the Senate Democratic leadership thinks it gets the authority to not seat Burris. Under Powell v. McCormack, the ability of the Senate to exclude someone would seem to be limited to judging that he hadn't won the election (not applicable here) or that he is not qualified (30 years old, a resident of Illinois, and a U.S. citizen for nine years). Their discomfort with Burris's appointer doesn't enter into it.

Presumably, they could seat Burris and then expel him, but that would require a 2/3 vote, which would be hard to muster given that, by all accounts today, Burris is personally unobjectionable.

My best guess is that the Senate Democratic leadership would argue that the Senate's authority to judge the elections of its members extends by analogy to judging the appointments of its members; and that a corrupt election would be cause to not seat someone, so a corrupt appointment should be too. But surely this sort of determination would require some sort of investigation rather than a conclusion that Burris is unfit for office (even if the Senate could get away with this constitutionally, it shouldn't try to). Burris has not been connected to the corruption case as far as I know. What are the odds that Blagojevich would appoint him corruptly in the middle of this investigation?

If I were a leader in the Senate, I would confer with Sen. Durbin and Illinois state officials, and see what they think. I might hold some hearings to find out more about the circumstances of Burris's selection. But I would not say that the Senate can just refuse to seat Burris.

Posted by Brian_Kalt at 02:56 PM | Comments (17) | TrackBack

Toussie's Pardon *Was* Signed, Sealed, Delivered, and Probably Accepted

At his invaluable Pardon Power blog, Prof. Ruckman has done some very helpful reporting that, to my mind, strengthens Isaac Toussie's case immensely. The professor and I have tangled over pardon revocability in the text and comments here and here. His latest post reveals the following:

1) The President signed a formal pardon warrant, containing Toussie’s name, which expressly states that he was “hereby granted a full and unconditional pardon.”

2) That document was sealed and transmitted to Department of Justice (DOJ) with directions to notify the grantees.

3) The Office of the Pardon Attorney (OPA) called each grantee (or his counsel) via telephone and told him that he’d been pardoned by the President.

4) Then, the DOJ issued a press release that informed the world (including Toussie) that the grants had been made.

5) There is no issue about whether Toussie accepted the pardon – he had asked for it and it was granted without conditions.

It is well worth noting that, when the OPA makes these phone calls, the OPA has never informed grantees that they "will be" pardoned "as soon as they get the individual warrant" (which may take weeks to arrive). The OPA always tell them they "have been" pardoned. No contingencies.

So far, the president's argument has been that the pardons were still in some state of preparation--not yet a pardon, in essence--and thus could legally be halted. (Ruckman has labeled this argument foolish, and contended that pardons are revocable even when completed.)

Given that the facts Ruckman reports show that (1) the president signed a document saying he hereby gave a full and unconditional pardon to Toussie; (2) that that document was sealed; and (3) that the Office of the Pardon Attorney notified Toussie (or his counsel) that Toussie had been pardoned (not that he would be), I think it is fair to say that for all intents and purposes, this pardon had been signed, sealed, and delivered.

One might argue that Toussie hadn't accepted the pardon, but I reject that conclusion given that he had gotten exactly what he applied for with no conditions attached (the offer was his, and acceptance was the president's), and also given case law undermining the notion that pardons must be accepted. I also would be surprised if when Toussie or his counsel got the phone call, they didn't accept it.

I do not agree with Ruckman that a pardon, once granted, can legally be revoked. But I do agree with him that the president's argument in this case--that the Toussie pardon had not yet been granted--is foolish. I expect that there are a lot of people following this story whose thoughts paralleled mine. First, upon hearing that Toussie pardon had been revoked, I thought "what? you can't revoke a pardon." Then, upon hearing the claim that the pardon hadn't been processed yet, I thought "well, maybe this wasn't a pardon." Now, upon hearing that it had been signed, sealed, delivered, and presumably accepted, I'm back to "what? you can't revoke a pardon." I hope that Toussie litigates this and that the court settles this once and for all.

Of course, there is still the matter of Ruckman's argument that completed pardons can be revoked. His argument is backed up by examples that, while unlitigated and mostly old, are nevertheless numerous and undeniably there. (And, to Ruckman's credit, they shoot down the callow media reports that Bush's move was unprecedented.) If Toussie loses this case, that history will be why. But personally, for reasons I have posted already, I expect other arguments to prevail, and that the history to be relied upon by the dissenters, if any.

Posted by Brian_Kalt at 07:51 AM | Comments (3) | TrackBack

More on the President's Attempt to Revoke the Toussie Pardon

Following up on my earlier post, I have some more thoughts on the Toussie pardon. I originally cited some thoughts by Michael Froomkin. Froomkin has a follow-up post in which he, in my opinion, gives up too easily.

The White House seems to be arguing that a pardon needs to be signed, sealed, and delivered before it is effective. I have already explained why I think that is wrong: signed, yes; sealed, probably, whatever that means; delivered, no. But regardless of all that, as Ellen Podgor points out, Toussie has a good argument that the pardon actually was signed, sealed and delivered. The DOJ press release on the 23rd said: "On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual." It didn't say that Bush started the process of pardoning them. It said he pardoned them, because that's what everyone understood was happening. Without knowing exactly how these things work, I can't assume that Toussie got a phone call, formally communicated his acceptance, or what, but maybe he did. In any case, there was a whole day there in which he and the rest of the word knew that he had been pardoned.

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn't purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: "After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons." That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that "it’s not clear to me that [revocation is] as easy to do as all that."

Indeed, all of the commentary has referred to this as a pardon that was issued and then revoked. But pardons can't be revoked. So the White House needs another theory. Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn't hold up. First of all, it describes the president as accepting the recommendation to pardon Toussie. Then, it concludes by describing how the president is going to now have the Office of the Pardon Attorney review Toussie's case, because he "believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made." But the president already had that opportunity, and chose not to take it. If President Bush believed that the OPA should have had a chance to review, say, the Marc Rich case, then he could have set up his OPA process that way. But surely, if he thought he could reach back and hold up the Rich pardon the way he did the Toussie pardon, he would have done so.

In any case, if I were Toussie (the only person with standing to challege the president's action here), I would fight this. I think that it is pretty unlikely that Bush is going to re-do the pardon. Nevertheless, there is no point litigating the issue until after January 20; as long as the OPA is sitting on the question, there is a ripeness issue that would not be worth adding to an already complicated situation.

But once President Obama takes office, one can assume the application will be rejected, if it hadn't been already. Then Obama's administration will have to defend the revocability of the pardon. One might expect a spirited defense, under the old "let's not cede any authority we may have" doctrine. Then again, Obama could argue in favor of the president's power to issue pardons that take effect immediately, rather than ceding that power (and, ironically, watering down the unitary executive theory) as Bush has purported to do here. Further, the Obama Administration could make the more political argument that do-overs raise political convenience over the care and diligence that the Constitution expects of the president here.

To be sure, there is a Gilded Age history of revoking pardons that the initial press reports missed. But the more modern precedents on the nature of the pardon power, not to mention modern communications, suggest to me that Toussie has a good case here.

Posted by Brian_Kalt at 11:13 AM | Comments (5) | TrackBack

President Bush Revokes Pardon of Isaac Toussie

As this MSNBC story and this CNN story detail, President Bush pardoned real estate scammer Isaac Robert Toussie, and then revoked the pardon a day later (today).

It seems to me that this is not constitutional. Once issued, a pardon is a pardon. That's that. The president has the power to lift criminal consequences from someone, but not to unilaterally impose them, which a pardon revocation does.

I can't find all of the details here. Perhaps President Bush announced that he would be issuing the pardons, but did not actually issue them in the requisite official form. But it sure seems like he signed off on them. One other possibility is that the pardon was made conditional on some sort of follow-up by Toussie, which he had not performed. But I see no reporting on that either. It just looks like the president issued a pardon and then un-issued it.

President Bush actually referred the matter to the Office of the Pardon Attorney for further consideration, so it is possible that Toussie will get his pardon back. One can imagine that Toussie and his lawyers might not want to challenge the president's revocation if they still hope to get something from him. Since Toussie is probably the only one with standing to argue the constitutional point, though, the only way to answer the revocability question is for Toussie to challenge the president's action in court. From the CNN story, though, it doesn't sound like that is going to happen.

Strange days indeed.

UPDATE: According to the official White House statement, President Bush did not actually pardon Toussie, but only delivered a Master Warrant of Clemency to the Office of the Pardon Attorney. This just instructs the pardon attorney to execute and deliver the pardons. So it wasn't final.

Marbury v. Madison famously held that a presidential appointment need not be delivered before it is effective, but as this helpful blogger notes, pardons are different from appointments in the Supreme Court's eyes:

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall’s in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official’s commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President’s Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson’s offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy’s agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. . . . Indeed, President George W. Bush’s administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

This takes a good deal of the wind out of the sails of the arguments that Toussie might make. But not all of the wind. Wilson dealt with someone who didn't want to accept the partial pardon the president had given him; the Court let him refuse it (a conclusion that I have questioned elsewhere in light of subsequent precedent, but let's accept it arguendo). DePuy dealt with someone who had a conditional pardon, which condition he had not yet fulfilled when the pardon was revoked.

In Toussie's case, he wanted the pardon. He had applied for it and (I think) gotten everything he had asked for. Wilson is thus inapt. There do not appear to have been any conditions placed on Toussie's pardon; DePuy therefore does not control. Toussie's pardon thus seems to be final in a way that Wilson's and DePuy's pardons were not.

However, Marbury adds another wrinkle. A commission, Chief Justice Marshall wrote, does not to be delivered to be valid, but it does have to be sealed (in that case by the secretary of state). Here, if the president sent a sealed document to the pardon attorney, ordering him to deliver it to Toussie; or if the president sent an unsealed document to the pardon attorney, who then sealed it but didn't deliver it, Toussie still has a good argument that the pardon is final. If the document was not yet sealed when it was revoked, his case is much weaker.

Posted by Brian_Kalt at 08:59 PM | Comments (10) | TrackBack

Can President Bush Be Impeached After He's Gone?

Can presidents be impeached after they have left office? In a 50,000-word article a few years ago, and in Chapter 6 of the book I am writing, I argued in favor of what I call "late impeachability," and identified the (admittedly rare) contexts in which it might make sense.

I'll do the same here, albeit in much, much less detail. In this post, I'll talk about practical considerations (i.e., the "Why bother?" question). In a few days, I'll post about the legal arguments supporting late impeachability (i.e., the "Whatchoo talking about, Willis?" question).

As with my post on presidential self-pardons, my writing on this question has been consistent over two presidencies; I have no partisan axe to grind. In any case, I don't support any efforts to impeach President Clinton or President Bush. This post's title is thus a bit dodgy (though presumably it succeeded in getting your attention).

My draft chapter starts out with this hypo, which touches on many of the practical considerations, and previews some of the legal arguments:

A year into his term, President Jack Martin is embroiled in the most scurrilous scandal in presidential history. Rumors swirled for several months before Martin finally gave into public pressure and appointed an independent counsel. It soon becomes obvious why he had been so reluctant: the independent counsel quickly uncovers mountains of evidence of President Martin's lucrative and corrupt relationship with Ted McGee.

McGee—a lobbyist and longtime friend of the president—collected tens of millions of dollars in "lobbying fees" from people, companies, and governments, and turned over half of the money to President Martin. Without fail, McGee's clients benefited from presidential attention to their needs almost immediately after paying their bribes. As desired by McGee's clients, Martin promoted or vetoed legislation, appointed or fired officials, and more. In the worst instance, Martin ordered the military to share certain top-secret missile technology with a less-than-steadfast ally.

It is a national disgrace. The independent counsel indicts McGee and fifteen of his clients, and she prepares a comprehensive indictment against Martin to move forward as soon as he is out of office. The House Judiciary Committee begins considering articles of impeachment, and there seems to be little doubt that Martin will be impeached and convicted swiftly.

Seeing the handwriting on the wall, President Martin resigns. He is indicted and prepares to defend himself in court. His successor, President Barker, clearly had no involvement in the scandal, and at age seventy-three he promises not to run for a full term. One of Barker's first acts as president is to pardon President Martin, on condition that Martin surrender all of the money mentioned in his indictment (which totals more than fifteen million dollars), plus an additional 20 percent, to the government. Addressing the nation, President Barker says that Martin has suffered enough and that the United States needs to move on: "A presidential prosecution would take a long time and be difficult to conduct evenhandedly. It would produce more spectacle than justice, and it would distract us at a time when we need to refocus our attention on the real problems facing Americans." Martin accepts the deal.

There is an uproar. Some people—mostly members of Martin and Barker's political party—agree that the country needs to move on, and they are satisfied that Martin has suffered enough. Most Americans disagree and think that Martin should go to prison. But with the pardon, and with little prospect of a state prosecution, there is no way for this to happen.

Luckily for the disgruntled majority, the opposition party controls both chambers of Congress, and they are not keen to let go of the Martin scandal. For one thing, there are still a lot of unanswered questions about Martin's conduct. For another, Martin's crimes are a political goldmine, not least because the midterm congressional elections are only a few months away. Multiple congressional committees hold hearings on Martin's bribes.

Subpoenaed by three separate committees, ex-President Martin refuses to testify. He submits a written statement arguing that the separation of powers precludes Congress from forcing him to testify under oath about his actions as president. He concedes that he can be subpoenaed by the independent counsel pursuant to her criminal investigation (or what's left of it, anyway), but he rules out providing any documents or live testimony to Congress.

It was bad enough that Martin shamed his country and his office and avoided prison. Now that he is adding insult to injury by thumbing his nose at Congress, the House's leaders decide to revive Martin's impeachment (which is beyond the reach of a presidential pardon). It is the only way for them to vindicate their authority, and the only hope for holding Martin accountable.

But Martin has left office, and the strong majority that would like to punish him is divided. Many say that impeachment is only for removing people from office, and that it is legally impossible to impeach the ex-president. Moreover, whether or not it is legally possible, many members of Congress ask what the point is. The most common answer—that it will keep Martin in the news during the congressional election campaign—seems cynical and turns off a lot of people who would prefer that Congress do something more productive.

Still, there are enough people who harbor enough anger at Martin that it looks like the impeachment will go forward. The leaders of the effort argue that it is perfectly constitutional to impeach someone who has left office. The constitutional text allows it and there is ample historical precedent, they say. In addition to being removed from office, convicted impeachees can also be disqualified from holding office in the future, and while it is unlikely that Martin will ever work in government again anyway, his foes would still like to brand him with this mark of shame.

If Martin were clinging to office, his impeachment in the House and conviction in the Senate would be a sure thing. But late impeachment is controversial, and it is obvious that the issue has to be settled before the case can go anywhere. The hottest political issue in the country is now a constitutional-law issue, and the nation's top politicians—and maybe its top judges—stand ready to adjudicate it.

Admittedly, the conditions under which Congress would ever bother to pursue an ex-president are rare. Then again, the conditions under which it would pursue a sitting president are rare too. The core importance of impeachment, late or otherwise, is not the cases that arise, it is the cases that don't. No president has ever been removed from office through impeachment, but every president has been constrained by the possibility of it. Imagine a United States in which the president knew that no matter what he did, he would be able to remain in office for four years. It seems obvious that the temptation to abuse power would occur more often in that system than it has in our real one.

Without late impeachment, this deterrent effect would fade fast near the end of a president's term. If impeachment cannot touch a president once he has left office, then it provides him with an incentive to behave only early in his term, or to conceal his wrongdoing long enough to run out the clock. By contrast, if the president is subject to impeachment for the rest of his days, he will have an added incentive to conduct himself appropriately to the very end of his term. If he fails to do so, he could at least face scrutiny.

So like regular impeachment, late impeachment is worth discussing even though it is highly improbable. For those who are unconvinced, here are some factors that I think could lead to a late impeachment actually happening.

First, the criminal penalties facing the president might be insufficient. There might be constitutional barriers to criminally investigating the president; the offense might not be a crime; or the ex-president could have been pardoned, cut a deal, or just left alone. (Significantly, no prosecution was ever brought against the obviously corrupt Secretary of War William Belknap—who was late-impeached but acquitted by five votes.) Congress might feel the urge to punish the ex-president as only it can, such as disqualifying him from future office. If it tweaks the presidential pension laws a bit, it could also use late impeachment to strip an ex-president of retirement benefits, as Senator Specter suggested be done to President Clinton in 2001 (had there been harder evidence against Clinton in the Marc Rich case, Specter's comments might be more than the less-than-a-footnote they are today).

Second, the impeachment would need to represent some sort of perceived political advantage for Congress. This is not inconsistent with the first point—going after bad guys can be popular—but unless the partisan zeitgeist in Congress is just so, pursuing an ex-president might seem like a waste of time. On the flip side, though, pursuing a sitting president can be unpopular too. Late impeachers might actually be emboldened once they can no longer be accused of trying to force a duly elected president from office; once that consequence is off the table, the case can just be about going after the bad guy. The bottom line is that Congress does what it thinks makes sense politically, so a late impeachment would have to make sense politically. Gerald Ford, pursuing Justice Douglas, famously said that an impeachable offense is whatever a majority of the House says it is. He might better have noted that an impeachable offense is only what a majority of the House can agree is worth pursuing, which is no small barrier to overcome—as the case of the unimpeached Justice Douglas shows us.

Third, Congress might act to protect its prerogatives. If the president left office to avoid impeachment, or if the ex-president was stonewalling a lower level congressional investigation, Congress might feel as though late impeachment was the only way to vindicate its authority. To take a current example, I can easily imagine (1) President Obama deciding not to pursue criminal charges against President Bush and his administration over the torture and surveillance controversies; (2) a netroots-led partisan groundswell that spurs the House to pick up the matter, as the only authority with the power to investigate and make public the former administration's actions; and (3) impeachment emerging as the only way to break through the ex-president's assertions of privilege and hold him accountable. Not my cup of tea, but I can still picture it.

Of course, the president would likely challenge congressional authority to impeach and try him. The courts might take the case, or they might leave it to Congress to sort out. Heaps of arguments about the Constitution's text, structure, history, and precedents would fly back and forth in the courts, Congress, and public square. But all that will have to wait for my next post.

Posted by Brian_Kalt at 10:59 PM | Comments (6) | TrackBack

William Cuddihy's The Fourth Amendment: Origins and Original Meaning 602-1791

I'm delighted to announce the publication of William J. Cuddihy's The Fourth Amendment: Origins and Original Meaning 602 - 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it's an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.

Cuddihy's book is the most comprehensive history of the Fourth Amendment I've ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it's worth every penny.

I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn't believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I'm delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:

No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy's The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.

Get your copy today. Tell your librarian to get a copy for your school's library. It's truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.

Posted by Daniel Solove at 06:41 PM | Comments (4) | TrackBack

Can the President Pardon Himself?

Would a presidential self-pardon be valid?

My answer—no, it wouldn't be—was first registered back in the 1900s, when I wrote my student note, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons. This was the beginning of my principal scholarly focus: "weird constitutional stuff that probably won't ever happen (but if it ever does, wow!)."

As President Bush's term draws to a close, people are starting to ask me about self-pardons again, just as they did at the end of President Clinton's—and just as President Nixon asked his lawyers before he resigned (they said he could self-pardon, and he contemplated it). Not that partisans ever believe it, but my answer has been the same regardless of which party the president in question belongs to.

There are good arguments on both sides of the question, and Chapter 3 of my book-in-progress (Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies) deals with them in more detail than my note, and in much more detail than this post. The chapter starts with a hypo (after which, in this post, I will sketch out the legal analysis):

The last year of his second term have been a non-stop political and media circus for President Smith. He and his top operatives have been embroiled in a complex and confusing scandal, with a seemingly endless stream of allegations of bribery, tax evasion, abuse of the power of the presidency, and, for good measure, some violence and drugs.

Smith paid a price for the scandal, to be sure, but the political backdrop—extremely intense partisan division in the country—allowed him to fight back. He consistently and strenuously maintained his own innocence and attributed the matter to the political opportunism, dishonesty, and malice of his opponents. Indeed, his most vocal critics were so shrill and hypocritical that most of Smith's allies continued to support him.

All of this turmoil came to a head in last week's presidential election. Unfortunately for Smith, his chosen successor, Vice President Jones, narrowly lost the election to Governor Miller. Now that the opposition controls the White House, it looks like the investigation against Smith will expand and be led by Smith's political enemies, now wielding the substantial weapon of Miller's presidential power. Indeed, the rumored choice to lead the prosecution, Tom Taylor, is well known both as a tough prosecutor and as a critic of President Smith's conduct.

Smith makes a fateful decision. He pardons his aides implicated in the scandal "for any crimes they might have committed" during his two terms, and then he pardons himself using the same vague formulation. Explaining his decision on national television, he states again that he and his aides have done nothing wrong, and that he wants to spare the country the expense, distraction, and vitriol of a continued investigation led by his vindictive enemies. "For ten months these scurrilous people have paralyzed the country. We've been unable to work on the real problems Americans face," he says. "It looked to me like this problem was about to get worse. Enough is enough. With this pardon, I'm taking decisive action to finally end this long national distraction."

Smith's opponents are enraged. They claim that the self-pardon is constitutionally invalid and they call for the investigation to continue. If Smith had resigned and let Vice President Jones pardon him, they argue, the pardon clearly would have been valid and would have avoided this legal snarl. But Smith had always maintained his innocence and refused to resign, and Jones was not entangled in the scandal at all. Jones might want to run for president again, and she clearly had no desire to compromise her future political viability by accepting the presidency for two months in exchange (seemingly) for pardoning her troubled boss. For his part, Smith did not want to take the chance that Jones would not pardon him, and he also did not want to put her into the position of having to choose.

Smith's supporters—publicly defensive, privately gleeful—confidently assert that a president has the constitutional power to pardon himself and that Miller and Taylor should give up the case. Nobody seriously doubts that if the parties were reversed, everybody would be making the exact opposite legal arguments, and just as loudly. At any rate, it seems that the expense, distraction, and vitriol of this long national distraction are not over just yet. Smith leaves office, Miller takes over, and Taylor gets a grand jury to indict Smith. Smith cites his pardon and moves to dismiss the indictment. This case is going to the Supreme Court.

The thing about self-pardons is that there is probably no way to answer the question of whether they are valid or not, until and unless an actual president issues an actual self-pardon and has it tested in court. All I can do is lay out the things I think that court would chew on.

The main argument in favor of self-pardonability is that the Constitution gives the president a broad power to pardon and carves out some specific limits, but self-pardons aren't one of them. The Constitution says that presidents can only pardon federal crimes, and that pardons can only affect criminal sanctions, not congressional impeachment. Another limit, implicit in the definition of a pardon, is that it can only reach past actions; pardoning someone for something he hasn't done yet would be a suspension of the law, not a pardon. Those are the only limits, say proponents.

But that last point tees up the best textual argument against self-pardons. The pardon power only empowers the president to issue "pardons," obviously, so we need to figure out what a "pardon" is. One can argue that a pardon is, by definition, something you give to someone else. But that's a bit circular; a court could also say, "no they aren't," and thereby make it so.

There are structural arguments on both sides too. Opponents of self-pardonability can point to the limited nature of the presidency, and to the myriad constitutional prohibitions on self-dealing and self-judging. Not all of these prohibitions are explicit. The Constitution would seem, for instance, to give the vice president the power to preside over his own impeachment trial, but some people read into the Constitution an inherent prohibition on such a thing. If you have a problem with a VP presiding over his own trial, you should have an even bigger problem with self-pardons.

Proponents can respond that the pardon power is broad enough to accompany all manner of ghastly pardons. A president can pardon his co-conspirators; he can pardon his VP, step aside, and have his VP pardon him. If he can do those things, why not pardon himself? The check on all of these self-interested pardons is not to pretend that the pardon power has (awfully convenient) implicit limits. The check is impeachment, and possibly prosecution—a self-pardon, even if valid, might constitute a crime and an impeachable offense, just like one given in exchange for a bribe would be.

Those who look to original intent can support either side too. As I discussed in a post here a few days ago, when the possibility of treasonous presidents pardoning their co-conspirators came up, the response was that such presidents could be impeached and prosecuted. Surely this discussion is incompatible with the delegates understanding that the president could pardon himself. They probably didn't think self-pardons were possible, under basic principles against self-judging. At the very least, though, they didn't consider the possibility.

Finally, opponents would probably emphasize the general point that nobody can put himself above the law, that no one can be the judge in his own case, etc. Proponents could respond that these principles, for all of their venerability, do not rise to the level of a constitutional requirement.

The main question I have faced when I have promoted this topic—and most of my others—is, "why should we worry about this, given how unlikely it is?" (at least I think that's what people are thinking when they roll their eyes).

For self-pardons, I have two answers. One is to say that analyzing questions like this gives us an opportunity to test our assumptions—about pardons in particular, and about constitutional interpretation in general. Plus, they're interesting and fun to think about.

The second is that it might actually happen. My fictional hypo paints the picture I see when I envision a self-pardon; another version would involve a clearly guilty, totally shameless Blagojevich-type crook. Neither scenario is beyond the realm of imagination. The point, though, is that it is worth thinking about in advance, before the analysis gets clouded with the sort of party-line interpretations one saw in the Clinton impeachment case.

That said, there is probably nothing anyone can do to actually settle the question in advance, short of amending the Constitution. It's hard enough to amend the Constitution to fix actual problems, though, so it is not really worth contemplating amending it to preempt this merely hypothetical one.

Posted by Brian_Kalt at 09:07 PM | Comments (10) | TrackBack

Rep. Nadler's Proposal to Amend the President's Pardon Power

Rep. Jerrold Nadler (D-NY) is apparently going to introduce a constitutional amendment to limit the president's pardon power. It would prevent presidents from pardoning members of their own administrations for their official acts, and would limit the pardon power in the last months of a presidency.

Nadler is apparently worried that President Bush will do both of these things, and issue lame-duck pardons of his subordinates for their role in the administration's controversial torture and surveillance policies. [One might wonder why Nadler didn't have anything to say about President Clinton's controversial last-day pardons of a member of his administration (Henry Cisneros), and a domestic terrorist who had enlisted Nadler's assistance in the pardon process (Susan Rosenberg of the Weather Underground). To be charitable towards Nadler, though, Rosenberg wasn't a member of the Clinton Administration, and Cisneros's criminal conduct did not arise out of his Cabinet duties, so his proposed amendment is consistent with allowing those pardons.]

To me, the most interesting thing about Nadler's proposal is how diametrically opposed it is to the Framers' conception of the pardon power. This is not a criticism of Nadler's proposal as such—by definition, constitutional amendments are inconsistent with the constitutional provisions that they are trying to change. But it is striking, and illuminating.

When the Framers debated the pardon power, Edmund Randolph (later the nation's first attorney general) proposed that the president should be forbidden from pardoning people for treason. As Madison's notes record Randolph's argument: "The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments."

But Randolph's motion was soundly defeated, and so presidents have the power to pardon treasonous conspirators that they themselves have directed. For the Framers, this was not too great a trust, for the same reason that the president is the best repository of the pardon power: the president is politically accountable to the whole nation, in a way that no other official in the government is, and he is not above the law.

These themes are evident in the debate. The response to Edmund Randolph came from James Wilson (later the first justice sworn onto the U.S. Supreme Court), who said: "Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted." The pardon power is an important safety valve in the legal process, and its importance is heightened in serious cases like treason. It is not that Wilson thought no president would ever issue a bad pardon. It was that he thought that no president would be able to count on doing so with impunity.

It is certainly true that presidents are politically unaccountable at the ends of their terms. Consider President Bush (41) on Christmas 1992 (when he pardoned figures in the Iran-Contra scandal), or President Clinton in January 2001 (when he pardoned 'everyone and his brother'), or President Bush (43) right now—at that point in the term, they know they will never face the voters again. But accountability runs further than elections. Presidents are also accountable to Congress, and to the criminal law. As Wilson noted, presidents can be impeached and prosecuted.

This might ring hollow to some readers, and it's why I will be blogging this month about the ability of presidents to pardon themselves, the ability to impeach presidents after they have left office, and the ability to prosecute presidents. One thing to mention right now, though, is that even if the president has the power to issue a corrupt pardon, he cannot do so with the assurance of impunity. Corruption is corruption, and can be punished. A pardon issued in exchange for a bribe, or as part of a criminal conspiracy, might make some underlying criminal charges go away, but it tees up a new one. [Some have characterized President George H.W. Bush's pardons of Iran-Contra defendants—after Bush had been defeated by Bill Clinton, but before Clinton took office—as the closest thing we have seen to Randolph's scenario, since Bush himself was a target of the investigation, which his pardons effectively shut down. I reject this characterization. Bush still could have been prosecuted or even (I argue) impeached.]

At some level, I am sympathetic to the second part of Rep. Nadler's proposal, because I think that the president, while still accountable in his last few weeks, is so much less accountable that the potential for mischief exceeds the benefits on unrestricted power. Perhaps allowing two-thirds of the Senate to override such lame-duck pardons would make sense. But in the grand scheme of things, this is a trifle. We don't amend the Constitution over such things, and it is largely pointless to try.

I am less sympathetic to Nadler's other proposal, because it is problematic to limit the president's ability to pardon his own subordinates. Again, it is not that such pardons are necessarily good (or ever good, for that matter). It is that our Constitution generally does not try to get specific. It relies on structure, on the political process, and on the rule of law. For instance, instead of specifying the qualifications for offices, the Constitution relies on the Senate to use its confirmation power wisely, and for presidents to make their nominations with that in mind. By the same token, the Constitution does not restrict the pardon power much, because it relies on the political process, the impeachment process, and the criminal law to prevent ill-advised or corrupt pardons.

Perhaps Rep. Nadler wouldn't disagree with any of this. Maybe his proposal is intended not to actually lead to a new constitutional amendment, but to cow the president into withholding pardons. Maybe, in other words, Nadler is using the political process to hem in the pardon power. If that's what he is doing, then the system is working just fine. And if and when his proposal quickly fizzles for lack of political support, the system will be working just fine then too.

Posted by Brian_Kalt at 10:41 PM | Comments (10) | TrackBack

The Future of Civil Rights

As U.S. News and World Report highlights, civil rights advocates now find themselves in the exciting position of suggesting policy changes to an incoming administration whose Commander in Chief really understands civil rights issues. James Rucker, executive director of ColorOfChange.com, an online community devoted to black politics, notes: "Now we're moving from hypothetical mode to people saying we have to figure out what our agenda is so we can present it to President Obama." To be sure, meaningful equality for members of traditionally disadvantaged groups will require policy changes. But it also can, and should, be pursued by enforcing existing law, something the prior Administration had difficulty doing. As Professor Helen Norton testified before Congress last year, the Bush Administration had an appalling record in its enforcement of civil rights laws, including those involving employment discrimination, as compared to previous administrations. And the Obama Administration will undoubtedly reverse that course: at the head of the EEOC transition team is Helen Norton, who served as the Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice during the Clinton Administration, where she managed the Civil Rights Division’s Title VII enforcement efforts. Her most recent testimony before the U.S. House of Representatives Committee on Education and Labor Subcommittee on Health, Employment, Labor, and Pensions at a hearing concerning workplace discrimination demonstrates how exciting her appointment as head of the transition team for the EEOC is.

Posted by Danielle_Citron at 09:22 AM | Comments (11) | TrackBack

Balkin's Grail: "Durable Compromise" on Abortion

Agree or disagree with him, Jack Balkin is aiming high with his ongoing efforts to reach what he calls a "durable compromise" on abortion:

a durable compromise over abortion ... would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children.

A few years ago, I saw an earlier attempt by Balkin to reach abortion common ground -- an AALS panel on communitarianism that focused on reaching common ground. I feel for Balkin that, both times, his efforts have not been terribly well-received by pro-lifers. At the "communitarian" panel, Teresa Collette Stanton followed each statement by Balkin not with any responsive foray into common ground, but only with counterarguments why abortion is murder. Balkin's more recent post has yielded a far more reasonable response by Rick Garnett; I say more reasonable not because Garnett is less pro-life than Stanton, but because unlike Stanton, Garnett responds to Balkin not simply by reiterating pro-life arguments, but by critiquing Balkin's suggestions as to what would, and would not, be a reasonable "compromise" package.

Rick's key point is that " 'compromise' involves, well, compromise" -- that pro-choicers have to offer more than "social services and support for poor women that make it easier for them to choose to have children" rather than abortions. Rick proposes that among the items pro-choicers would have to cede are (1) "acceptance ... of rules that allow health-care workers ... [and] religiously affiliated institutions ... to opt out of cooperating directly with the provision of elective abortions" in the services or insurance they provide" and (2) an end to "limitations on the (peaceful) speech of anti-abortion protesters." After I commented on his post, he asked me, "What are you willing to put on the table?"

As a pro-choicer, I don't agree that Rick's two proposals would be good law or policy -- but as he notes, compromise involves accepting things you disagree with; and if pro-choicers are expecting to negotiate for something as big as getting pro-lifers to give up on criminalizing abortion, pro-choicers had better put a big stack of chips on the table. So I'd offer up a good chuck of both his points, #1 (most notably, not compelling religiously affiliated institutions to provide or pay for abortion) and #2 (allowing peaceful anti-abortion speech, like the ongoing protest at the Planned Parenthood location a few miles from my home).

But let me suggest something bigger: the debate should be about what week abortion becomes illegal, and the Supreme Court had flubbed that debate. The Court has been issuing its own "abortion compromise," declaring abortion legal but allowing increasing restrictions -- which seems oddly misguided: (a) abortion is legal until quite late in the second trimester of pregnancy, yet (b) abortion can be restricted quite early in pregnancy, and (c) early-pregnancy restrictions (waiting periods, notification/consent requirements, etc.) tend to make early abortions occur a bit later (e.g., turning week 8-9 abortions into week 10 abortions). I don't think all pro-lifers really see a week one "abortion" (e.g., emergency contraception) as the moral equivalent of a week 22 abortion, and I don't think all pro-choicers see a week 22 abortion as just as morally uncomplicated as a week one abortion. If abortion becomes more troubling the later it is in a pregnancy, then the Supreme Court's current compromise is the worst of all worlds: the law makes many early abortions occur later, while allowing quite late abortions.

A more sensible compromise than the Court's would be this: abortion is legal and substantially unrestricted until week X. I'm sure I'd come up with a different "week X" than Rick, but it'd be a lot earlier than the Court's current standard, "X=viability" (week 24, give or take?). Wouldn't pro-lifers prefer (for example) "no abortion after the first trimester" to "you can abort even a week 20 fetus but we can make it harder by requiring multiple doctor's appointments, banning just one of the procedures ("partial birth") commonly used as of week 15," etc.?

Posted by Scott_Moss at 12:25 AM | Comments (4) | TrackBack

Greenwald and Landau on Guantanamo Detainees

Glenn Greenwald put the recent release of five Guantanamo detainees in a chilling light:

The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong. If the members of Congress who voted for the Military Commissions Act had their way, or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.

It might seem like the whole system should be shut down immediately. But Joseph Landau has a very interesting article on the tricky legal and policy issues raised by the potential closing of Guantanamo Bay:

[S]even years after 9/11, there's little agreement on how the U.S. should try "enemy combatants," delaying the ability to close Guantanamo down. Some conservatives argue that civilian courts are too protective of detainee rights or would sacrifice sensitive national security information; civil libertarians reject national-security courts for insufficiently guarding defendants' rights. Many of the detainees' lawyers doubt that their clients' cases will wind up in the civilian courts. . . .

[A]round 60 detainees who have essentially been cleared of all terror charges remain at Guantanamo because they, too, cannot be returned to their home countries. The United States will not send a detainee to a country where he risks persecution or torture; the Convention Against Torture, which the U.S. signed onto in 1988, prohibits it.

[Many] Guantanamo experts believe that our allies won't accept Guantanamo detainees--even those cleared of all terror charges--as long as the U.S. refuses to do the same. Emi MacLean, a staff attorney at the Center for Constitutional Rights, which is coordinating the federal litigation on behalf of Guantanamo detainees, said, "What we hear from European governments is they are willing to help the United States as long as there's a demonstration that the U.S. is willing to pick up some of the pieces. The U.S. has to do its part as well." But advocating for the transfer of Guantanamo detainees to American prisons is politically dangerous.

Like much else in the Bush legacy, Guantanamo will be extraordinarily difficult to unwind.

Posted by Frank_Pasquale at 12:22 PM | Comments (2) | TrackBack

Conspiracy Lawsuit Watch: Alan Keyes Sues Barack Obama

Alan Keyes has completed his path from the establishment (Harvard PhD, Reagan's UN Ambassador, two-time Republican nominee for U.S. Senate, 1996 Republican primary Presidential Candidate...) to the world of conspiracy theory. Dr. Keyes has sued to halt the allocation of California's electoral votes to President-Elect Obama on the theory that Obama was born in Kenya and therefore is not a natural-born U.S. citizen, as the Constitution requires for election to the Presidency.

At first I thought that, like many conspiracy theories, this one is wacky but ultimately non-disprovable unless Obama indulges the accusers by producing his birth certificate for public view, which I thought unlikely (because then any accuser could make something up to demand access to Obama's original personal documents). It turns out, though, that, as FactCheck recounts in detail (with pictures), Obama did disclose his original birth certificate, thereby disproving claims that Obama's alleged U.S. birth certificate lacked a raised seal, etc., and therefore is a fraud. FactCheck also cites a birth announcement for baby Barack Obama in a 1961 Honolulu newspaper, which is hard to explain away.

Yet the lawsuit still exists, filed by a highly intelligent guy (whatever else may be said about Dr. Keyes). I suppose he still could claim that (a) the Honolulu newspaper doctored its 1961 microfilm to support Obama's claim of Hawaii birth, (b) Obama spent millions on machinery and staff capable of creating flawless counterfeit birth certificates, (c) etc.

I've always been oddly intrigued by conspiracy theories (though I haven't made it a field of scholarship like Mark Fenster!), but it's always hard to define "conspiracy"; is any lawsuit lacking direct evidence a conspiracy theory, and if so, doesn't that include a lot of discrimination claims based on circumstantial evidence, antitrust claims, mafia/gang prosecutions, etc? It's an interesting question, and it's always struck me as unfortunate that I don't have more than an "I know it when I see it" definition of a conspiracy theory.

I suppose a relatively narrow definition of a conspiracy theory is "an accusation (a) that is disproven by tangible evidence and (b) that therefore posits a massive conspiracy (i) involving many people (ii) to falsify complex and historical documents (iii) in various established institutions." Congratulations to Dr. Keyes for qualifying as a conspiracy theorist under even this narrow definition!

Posted by Scott_Moss at 02:44 PM | Comments (126) | TrackBack

HEY! YOU! VOTE!

See this image? It is a true screen capture of the page for the United States. Yesterday morning while John Scalzi and I were chatting, a question came up about the United States. He went to Wikipedia and this was the page. By the time I went to it, it had been changed back to its normal state. So this small event shows the speed of the Wikipedia world.

It also allows me to note as John did, "I disagree with this assessment, incidentally" with a caveat: prove the joker incorrect. STOP READING THIS BLOG! VOTE! Vote Democrat, Republican, Libertarian, write-in a Martian, but vote. It's one more way to show that the image is just plain wrong.

Posted by Deven_Desai at 02:53 AM | Comments (1) | TrackBack

Judge Kozinski: The First Amendment Is Dead

Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on "The Late, Great First Amendment." Typically provocative, Kozinski argued that individuals' inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat - though remote - of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks' portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I'm running off to class now, so I don't have time for an extended analysis, but it strikes me that Kozinski's eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned - protected by a prior restraint doctrine and fattened by classified ads - is the exception and not the norm in our tradition, so any conclusions relying on the Amendment's relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty - that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can't effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)