I’ll be happy with both.
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They still need to be prosecuted however, pour décourager les autres.
We’ve already seen how the arrests of the DC terrorists led to a complete collapse of the planned stormings of state capitols. Showing that there are specific personal consequences for actions like that really helps.
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I don’t see how you can get from (paraphrased) “once you’ve voted by 2/3rds on conviction/acquittal, the decision on whether to impose disqualification is by a further vote on a simple majority basis” to “you can impose a massive penalty on an officer of the United States without them having been convicted first”.
To me the language just doesn’t say that and I can’t even find a way to twist it in that direction.
So it surprised me to see that people are apparently arguing that it can be done.
And you referred to precedents, so I was wondering what those were.
Well, it’s a little theory called the rule of law. It’s held up fairly well over the years.
Except it’s not so much loopholes as that when he does something wrong, his political supporters refuse to take action.
There’s no need for loopholes when those whose job it is to hold him to account, look at what he does and applaud.
That is the problem the US faces, not a lack of checks or balances or tools to remove him. Those are all there. The Republicans just won’t let them be used. And enough people keep voting for them to allow them to do that.
My googlefu is weak today. Could you point me to some of these articles?
I’ve only been able to find one, a Reuters explainer on yahoo of all places - which includes both phrases you cited by the way.
That cites one ‘legal expert’, one Paul Campos, who I wouldn’t trust to tell me the time.
I appreciate that skirts pretty close to an ad hominem, if not all the way there, but since his opinion is supposedly worth considering based on his status as an expert, I think that’s only fair.
The language just doesn’t support it. I appreciate that one might be able to do it anyway and ram it through the court and then, yay, it’s a precedent but I would still insist that it is a) wrong and b) a very bad idea.
If that interpretation were to hold, any party holding both houses could permanently bar any office holder from holding any office ever again.
So that’s for example, the promising Democratic judge who might be a future presidential candidate. Disqualified on a simple majority vote.
A country with “parliamentary sovereignty” like the UK can remove and replace its chief executive at any time by a simple majority vote of the legislature, and it seems to work OK for them
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The Reuters article also cities Brian Kalt. It looks like my googlefu was pretty weak too, though. All of the articles I was looking at were just paraphrasing the same damn Reuters explainer.
This article from Vox is a lot more explicit and agrees with your take:
“To be clear, such a simple majority vote may only take place after the Senate has already voted to convict an impeached official. Two-thirds of the Senate must first agree to remove someone from office before that official can be disqualified — a simple majority cannot, acting on its own, disqualify an official from holding future office.”
I still think that it’s going to be tried and that we will ultimately have to see how it plays out. As I said above, though, I am less interested in disqualification and more interested in seeing Trump in prison.
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Well. We don’t remove our head of state that simply and we don’t apply the same rules to our Prime Minister as we do to our judges and all other government officers.
We also don’t permanently disqualify former Prime Ministers from holding any public office by simple majority vote. Unlikely as it seems Theresa May could theoretically become Prime Minister again or at least become a magistrate.
I think the closest we got to that sort of process was bills of attainder issued by the monarch.
That sort of thing was one of the reasons for which we did get rid of heads of state. Usually by removing their head.
We hope we’ve all moved on from the last little unpleasantness of that kind and so far subsequent monarchs have been pretty well behaved and done as they’re told.
Yes, I should have said, one expert in favour of the idea. Kalt says there’s doubt about whether disqualification was meant to apply to the President but his view is that if it does, it definitely requires conviction first.
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Ah, I see what they did there. Find one person who says it can be done and one who says it can’t be done and chalk it up to “scholars disagree.” Well played, Reuters.
I still think impeachment is now just a sideshow and that criminal charges are what will matter when, not if, they come.
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You keep speaking in generalities. What specific strategy would you have the Democrats employ? Because the Republican Party has been a ruling minority for decades. You can’t marginalize them with gung-ho slogans. Nobody has yet found a solution to their recipe of undermining good government, stoking fear, consolidating power via gerrymandering and the EC, stacking the judiciary, disenfranchisement of voters, and corruption of campaign finance.
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No matter how many people keep pretending Biden and the Democrats in general are just as bad as the GOP, that’s not true, and he’s not going to pardon the rioters. Drop the “bothsides!” bullshit, please.
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This is the problem we’ve been finding with "fairness"or “balance” requirements in the UK. Seems apropos given that I gather there’s some that hope restoring those in the US might help.
We find that all that means is that the BBC complies by say bringing on a scientist to discuss manmade global warming and, to provide balance, also gives equal airtime to a climate change denier. Or say has political debates at which the Greens (one MP) get as much or even less time/participation as the Brexit Party (no MPs).
In a US context, you’d get a Democratic spokesperson to discuss some policy issue and CNN also decides to invite a QAnon nutter to speak for the same amount of time about how ‘the Democrats want to blackmail Tom Hanks into building a Jewish space laser to create global warming in order to destroy coal mining jobs in the US’ or whatever.
It’s hard to know what the right thing to do is.
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Except we have. In the four years, the GOP has lost the House, the Senate and the Presidency.
Demographics are already burying them. Which is why they are fighting so hard.
The answer is to completely ignore them. Pass legislation without them, even if it takes longer. Dismiss and deny. Do not offer to compromise. Do not offer debate. Do not even hold out the hope of compromise until they reform their party.
Exactly the opposite of what they did in 2008.
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I know what you mean. In the US, there are no requirements for “fairness” or “balance,” but most respectable media outlets are loathe to have even the appearance of bias, and editors are pretty strict in enforcing this (which means inviting in some very nasty people to give their opinions next to actual experts).
Bad faith actors have gotten very good at weaponizing this trend to push the “middle ground” further and further to the right by making ever more insane claims. I wouldn’t be surprised if they had a scientist say that the sky is blue alongside a nutjob saying that the sky is red, and all under the headline “Is the sky actually purple? Scientists aren’t so sure.”
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Instead, the UK has a long history of sending heads of state who start a failed insurrection to the Tower of London - sometimes with bodies still attached, sometimes not. I’m not sure that’s wrong in this case.
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Because that paraphrasing distorts the meaning. If you read what was written about those cases, the Senate at the time makes the (bold) claim that the disqualification vote is distinct and not dependent on the conviction. It’s a strange interpretation of what is written in the Constitution, but it hasn’t been challenged. That’s not a slam dunk, but the way our laws go, the standard in precedent tends to get a head start relative to alternative interpretations.
It’s also as much a political process as legal one. If Schumer calls for a straight disqualification vote and it passes 51-50, that’s done. It’s not something that can just be undone except through the courts. As the GOP is often gleeful about saying, elections have consequences.
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Oddly enough, we haven’t really got much history with heads of state starting insurrections, let alone failing.
I mean nowhere has.
It’s just not a thing most heads of state do or need to do. By definition, you’re the head of state. You have all the apparatus of power already at least in theory.
You might become a dictator but then it’s up to your opponents to oust you.
If you can’t even manage a little thing like rounding up and purging your political opponents on the day they are all gathered together for you, well that’s just staggering incompetence or indeed a sign that you didn’t have a clue what the fuck you were doing, where it was going to lead or anything other than that it allowed you to have big crowds chanting your name and giving you lots of money and you worked out that the more you talked about “fighting”, etc. the more adulation the crowd would provide.
It’s all rats with levers stuff.
Not that this absolves Trump of responsibility.
Sorry, bit ranty maybe.
ETA:
I think you’re getting the wrong end of the stick with the ‘distinct vote’ business. But getting my head into a place where I can explain why I think that will take me a while (who knows by the time I’ve done, I may have persuaded myself that you’re right instead).
And I don’t know whether anyone else is interested so I may spin that off into a new topic.
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Sorry, you’re quite right about current heads of state. Would the assertion work better with former heads of state? 45 was a soon-to-be-former head of state…
I really hope you’re right. I’m going to be very sad if defacing Trump’s grave is the only justice he ends up getting. It’s still going to happen even if he ends up in jail, of course…
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Okay. After a bit of digging I’ve managed to dredge up the relevant senate proceedings. The precedent referred to in the Justia page you cited is the impeachment of Judge West H. Humphreys who decided to be a judge in the Confederacy without first resigning his post as a federal judge.
https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/html/GPO-HPREC-HINDS-V3-23.htm
After scrolling through all the tedious prelimaries where they try to notify him of the proceedings and get him to appear, we finally get to the ‘trial’ portion and the relevant debate about whether removal and disqualification are divisible.
It’s not clear to me how the document is divided so I’m going to refer to the relevant section as starting at Globe, p. 2951
Excerpt from proceedings
The House of Representatives having entered the Chamber, Mr. Foster
offered \3\ the following as an interrogation to be put to each member
of the court in order that judgment might be perfected.
Is the court of the opinion that West H. Humphreys be removed from
the office of judge of the district court of the United States for the
districts of Tennessee?
To this Mr. Lyman Trumbull, of Illinois, offered an amendment as
follows:
Add thereto: ``and be disqualified to hold and enjoy any office of
honor, trust, or profit under the United States.‘’
Mr. Trumbull quoted the Constitution to show that both removal from
office and disqualification should be the punishment.
Mr. Foster explained that the question proposed was in exactly the
form used in the case of Judge Pickering, and that it was the only
question propounded in rendering that judgment.
After debate, Mr. Trumbull’s amendment was agreed to, yeas 27, nays
10.
Thereupon, Mr. Garrett Davis, of Kentucky, asked for a division of
the question.
Upon this demand there was debate. Mr. Trumbull said:
I have very serious doubts whether it is a double question; whether
the whole is not one judgment. ``Judgment in cases of impeachment shall
not extend further than to removal from office and disqualification to
hold and enjoy any office of honor, trust, or profit under the United
States.‘’ I am not sure but that when the Constitution says it shall
not extend further than that, it necessarily follows that it shall
extend that far. It is not in the alternative, and I am by no means
satisfied that that consequence does not necessarily follow the
conviction. It is a limitation. As is well suggested by my friend from
Pennsylvania [Mr. Wilmot], could you impose that latter part without
the former? Could you decide that he should be disqualified to hold and
enjoy any office of honor, trust, or profit? If each proposition is
independent, it must be able to stand by itself without affecting any
other. I am by no means satisfied that these are independent
propositions. It seems to me that altogether the safer way is to take
the question on them together.
Mr. Jacob Collamer, of Vermont, said:
Mr. President, I take it the test of the divisibility of a question
depends upon whether there can be a vote left after it is divided, let
the first be decided as it may. That is the criterion; that, if after
you have voted yea'' or nay’’ upon the first article of division,
there is still a question to be decided
\1\ House Journal, p. 943.
\2\ Globe, p. 2951.
\3\ Senate Impeachment Journal, pp. 903, 904; Globe, pp. 2951-2953.
Sec. 2397
if the decision be either way. Now, in this case, suppose the
proposition to be that this man be deprived of office, and that he be
rendered ineligible, and it is divided, and the vote shall be that he
be not deprived of his office; is there anything left? There would be
nothing left to vote on, because the rendering him ineligible hereafter
is only a consequence of the first, and rests in judicial discretion
whether we put it on or not. It is not, in my apprehension, divisible,
because a vote in one way on the first branch would render it
impossible to get along with the second.
Mr. O. H. Browning, of Illinois, said:
We have the authority of an adjudicated case of the action of the
Senate, in which they found a judge guilty upon impeachment and entered
against him a judgment of ouster from his office; going no further. I
apprehend it was competent for them to do that. They were not bound to
attach to it the other consequence that may be attached to it under the
Constitution, of disqualification forever thereafter to hold office. It
may frequently occur–it occurred in that case, it may occur again–
that a majority of the Senators would feel it their duty to vote for
his ouster from office, and would not feel it their duty to vote for
his disqualification forever thereafter to hold any other office under
the Government, however unimportant. If you are compelled to put the
question, and the whole question, as one question–to put it all
together–men who are unwilling to vote to disqualify him forever,
disfranchise him forever, will be constrained to vote that he be ousted
from office, and also to vote for another proposition, which in their
judgments would be unjust. That would follow inevitably; and after you
had taken the question on them jointly, I apprehend you could not
return and divide them, and take the propositions separately, so as to
say whether he should be ousted from office.
The President pro tempore \1\ said:
In the judgment of the Chair these are separate and divisible
propositions. * * * From the authority of the Pickering case the Chair
is obliged to say that it is a divisible proposition.
The question was then taken on the first proposition, and it was
determined in the affirmative, yeas 38, nays 0.
On the second branch of the question there appeared, yeas 36, nays 0.
The President pro tempore thereupon pronounced the judgment of the
court, as follows:
This court, therefore, do order and decree, and it is hereby
adjudged: That West H. Humphreys, judge of the district court of the
United States for the eastern, middle, and western districts of
Tennessee, be and he is removed from his said office; and that he be
and is disqualified to hold and enjoy any office of honor, trust, or
profit under the United States.
In short, the ‘divisible’ bit is not about whether disqualification is distinct from conviction but whether disqualification is inextricably linked with removal or whether it’s open to the senate to remove but not disqualify.
Thy have already voted to convict by this point but appear not to have established that removal is automatic yet so they vote again to determine the penalty.
They start off with a proposal to vote on removal and one of the senators points out that the constitution also refers to disqualification. He argues that the motion should be amended to also include disqualification which leads into a debate whether into a debate whether disqualification is automatic on removal or not.
One of the senators points out they’ve already voted to convict and remove but not disqualify before and it might make it more difficult for people to vote for removal if it also means voting for disqualification from all future office.
One senator argues that it can’t be divisible because he thinks to be divisible it has to be completely separate, i.e. you could vote not to remove and still vote to disqualify - and that makes no sense - so it can’t be divisible.
The president pro tem decides that it is divisible.
Importantly this is that it is divisible and separate from the question of removal, not from conviction.
I guess we’ll see if anyone tries it this time…
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Thank you. That is a detailed analysis. I readily admit I had mentally conjoined conviction and removal; separating them does indeed change the picture WRT Humphreys and Archbald.
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