On MLK Day, Let Us Pledge to Courageously Meet the Problems of Today

The author (back left) and other ACSers out for an early morning run during the 2019 Atlanta convening.

If only to save ourselves from bitterness, we need vision to see the ordeals of this generation as the opportunity to transfigure ourselves and American society,” Rev. Dr. Martin Luther King Jr. implored an audience gathered on the steps of the capitol in Montgomery, Alabama, on Easter Sunday in 1958.  Dr. King was once again making history by using powerful and moving words, combined with nonviolent action, to call attention to injustices in our society.

As Martin Luther King Day approaches, we are once again living through a period when history of the highest order is being made right before our eyes.

In this year alone, voters from the State of Georgia made history by electing two new senators, Jon Ossoff and Rev. Raphael Warnock, to replace the state’s incumbent office holders. Rev. Warnock, like Dr. King, is a graduate of Morehouse College, a small liberal arts school known for infusing moral leadership in every aspect of its curriculum. He has also followed Dr. King’s path in pastoring the historic Ebenezer Baptist Church in Atlanta.

I, too, am a graduate of Morehouse, where I vividly recall hearing from professors who taught Dr. King and others who knew him well. As I reflect on what I have learned about Dr. King’s life of purpose, I cannot help but to compare his generation’s struggles to the tumultuous times of today.

This period of reflection also makes me think back to an autumn day in 2019, when I went on a morning run through the Sweet Auburn neighborhood in Atlanta with a magnificent band of lawyers from the American Constitution Society. We spent the previous day convening, discussing our shared commitment to the U.S. Constitution, and ways to use our legal education and experiences to improve the lives of others.

After a day of exercising our collective minds, we agreed to ignore the rain forecast and embark upon a group run to exercise our bodies. Our route took us down Auburn Avenue, first to Ebenezer, where Dr. King was ordained and later preached in the same pulpit as his father and grandfather, then past beautiful murals designed to remind visitors of the neighborhood’s rich history in the civil rights struggle and beyond, and finally to the birth home of Dr. King.

The exhilaration from the experience was tempered by the solemn acknowledgement of this nation’s struggles to live up to its ideas. As a former FBI agent, I found myself thinking about how the FBI as part of its Counterintelligence Program, commonly known as CoinTelPro, viewed Dr. King as a communist threat who needed to be contained. It has been widely reported that the FBI even sent Dr. King a “suicide letter,” where they threatened and encouraged him to kill himself. A previous FBI director said he kept a copy of the Dr. King wiretap request on his desk as a reminder of the organization’s enormous power and potential for abuse.

This week, the nation was once again reminded of the complex nature of law enforcement – they must be appropriately resourced and supported while simultaneously operating within the confines of the law and Constitution. Law enforcement powers are vast, but as Dr. King’s case demonstrates, they must not be abused.

With a global pandemic continuing to take thousands of lives each day, social and political unrest occurring inside and outside of both houses of Congress, and an upcoming change in presidential administrations, the country is once again at an inflection point. One option is to retreat to a place of hatred and bitterness. Or, we can choose the route suggested by Dr. King on that Easter Sunday in 1958, and “…in the interest of human dignity and for the cause of our democracy,” we can appeal to our fellow American to “gird their courage to speak out and act based on their basic convictions.”

That afternoon Dr. King asked his fellow Americans, regardless of “whether they are private citizens or public officials, to courageously meet the problem” of his day. As we reflect on Dr. King’s life, let us courageously meet the problems of today with a commitment to justice and the conviction to transfigure ourselves and American society.

Anthony Box is an ACS member and Assistant United States Attorney for the Department of Justice. The views expressed in this article do not necessarily represent the views of the Department of Justice or the United States.

 

The Senate Retains Authority to Try Donald Trump After He Leaves Office

The House of Representatives has impeached President Trump.  As early as next week, the Senate will convene a trial of the impeachment.  That trial will fulfill the Senate’s duty as the constitutional repository of the “sole power to try all impeachments.”

In a post published here on Wednesday, I wrote that Trump’s “second impeachment raises no interesting procedural or substantive issues (except maybe whether the presiding officer at the impeachment trial of a former President is the Chief Justice or the Vice President).  I stand by the statement, but that apparently does not mean Trump’s defenders will not stretch and contort to raise objections.  Witness yesterday’s Washington Post, which carried an op-ed by J. Michael Luttig, formerly a judge on the Fourth Circuit U.S. Circuit Court of Appeals, asserting that the Constitution “clearly” establishes that the Senate may not hold an impeachment trial of President Trump after he leaves office.  Judge Luttig could not be more wrong.

The Constitution, in fact, is silent on the question of who is subject to impeachment.  Judge Luttig cites the clause in Article II providing that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  All this clause “clearly” establishes is a mandatory punishment (removal from office) for current officers.  It does not even purport to address whether the impeachment power extends to former officers, let alone whether an officer who is subject to impeachment proceedings may evade punishment by leaving office.  The clauses that define the ambit of the impeachment power are found in Article I and make no mention of the limitation Judge Luttig reads into the Constitution’s text.  Article I assigns to the House “the sole power of impeachment” and to the Senate “the sole power to try all impeachments.”  Nothing in this assignment of authority excludes former officers.

While the Constitution’s text may be ambiguous, the original understanding and subsequent congressional practice emphatically establish that a former officer is subject to the Senate’s “sole power” to try impeachments.  As Alexander Hamilton makes clear in Federalist No. 65, Great Britain provided “[t]he model from which the idea of this institution has been borrowed.”  It was firmly established in Britain at the time of the founding that former officers were subject to impeachment.  Indeed, the British impeachment that most informed the framers’ thinking about the impeachment power was the impeachment of Warren Hastings for improprieties as the Governor-General of Bengal.  Hastings had been out of this office for two years before his impeachment by the House of Commons.  Moreover, at least two states – Virginia and Delaware – had established that their impeachment power extended to former officers.  Against this background, it is particularly telling that there is no indication in the Federalist Papers or in any other significant commentary from the founding era indicating that the framers intended the new Constitution to deviate from this baseline understanding.

Congress has also expressly addressed this question and resolved it in favor of the original understanding.  In 1876, the House drafted articles of impeachment against President Grant’s Secretary of War, William Belknap, but Belknap resigned before the House could vote on the articles.  The House debated whether Belknap’s resignation deprived the House of jurisdiction.  After the debate, the House voted to impeach Belknap, implicitly rejecting the argument that it lacked jurisdiction.  The Senate also took up the issue and voted 37-29 that Belknap’s resignation did not deprive it of jurisdiction.  This resolution affirmed the apparent understanding of Congress in 1797 when the House impeached Senator William Blount.  Both the House prosecutor and Senator Blount’s defense lawyer agreed that Blount’s resignation did not deprive the Congress of jurisdiction to impeach and try the senator.

The Constitution’s structure also confirms the original understanding that former officers may be impeached.  If the only punishment for impeachment and conviction were removal from office, that would strongly indicate that the power applies only to current officers, since it would be futile to convict someone who holds no office to be removed from.  But removal is not the only constitutionally-sanctioned punishment.  The Constitution also authorizes the Senate to disqualify a person convicted from ever holding federal office.  An officer who is convicted of accepting bribes could avoid this disqualification by the simple expedient of resignation.  The impeachment of President Trump vividly illustrates the point.  He stands impeached for inciting sedition and waging war on our democracy.  Disqualifying him from ever holding office again would be anything but futile.

Judge Luttig apparently recognizes just how weak his argument is.  He acknowledges the Belknap precedent yet offers no distinction.  Instead, he suggests the Supreme Court will have to decide what to make of it.  But that too is wrong.  The Supreme Court has held that the Constitution assigns the power to try impeachments exclusively to the Senate and that this assignment precludes the Court from involvement.  When Judge Walter Nixon challenged his Senate conviction, the Supreme Court unanimously held that his claim raised a political question, which the Court could not resolve because the Constitution commits the resolution of the content of the Senate’s power to try all impeachments exclusively to the Senate itself.

It is perhaps a testament to just how indefensible President Trump’s conduct is that his defenders must resort to specious procedural arguments.  The Senate should not be fooled.  Its authority to try President Trump even after January 20 is overwhelmingly clear.  In fact, it is the Senate’s constitutional duty to hold a trial.

Neil Kinkopf is a professor of constitutional law at Georgia State University.  He previously served as counsel to then-Senator Joe Biden during the impeachment trial of President Bill Clinton.

The Second Impeachment of Donald Trump

Donald Trump.  A President who will live in infamy.

This week, by all indications, Donald Trump will be impeached  for the second time in his four-year term and for the second time in just over a year. No President has ever been impeached twice. It is now official, inasmuch as such things can be official, that Donald Trump is the worst president in American history. No president has ever been corrupt enough (not Harding or Nixon), indifferent enough to the suffering of the American people (Hoover), racist and oppressive enough of human rights (Jackson or Wilson), or just plain failed and incompetent enough (Fillmore or Buchanan) to achieve this ignominy. And make no mistake, Donald Trump is spectacularly corrupt (emoluments, Russia, Ukraine), plainly indifferent to the American people (the pandemic, the refusal to act to combat climate change or to even recognize the plague of police brutality), racist and oppressive (kids in cages, Charlottesville, “rapists and murderers,” the Muslim ban, Lafayette Square Park, the vilification of Black Lives Matter), and failed and incompetent (all of the above and so much more).

Perhaps most amazingly, none of this is the basis of Trump’s second impeachment. Donald Trump will be impeached a second time for waging war on Democracy. From his months-long efforts to undermine the integrity of the election (calling into question various voting procedures, enlisting his toady Attorney General to lend his lies credibility, attempting to strongarm state officials into undoing the results of free and fair elections, and unleashing unscrupulous attorneys to file frivolous claims and to spread blatant lies) to his incitement of the mob to attack the Capitol and stop Congress from performing its constitutional duty to certify the will of the people that Joe Biden be President and that Donald Trump’s tenure end. There is no room for subtlety. No President has ever done such a thing. No President has ever done anything remotely close.

Just over a year ago, I wrote a post on this site entitled “What to Expect When You’re Expecting an Impeachment.”  That post canvassed some of the procedural issues relating to the first Trump impeachment. That impeachment in fact raised a vast array of issues, both procedural and substantive. Although it was only a year ago, so much has happened since that it is useful to recall some of them. Trump’s defense team raised the issue of whether he threatened to withhold aid from Ukraine unless Ukraine announced an investigation of Biden and whether that would constitute a high crime and misdemeanor if he did (nevermind that he did and it would). There was also much debate over whether the House should be permitted to present evidence or subpoena witnesses (recall Sen. McConnell’s refusal to allow John Bolton to be subpoenaed). The second impeachment raises no interesting procedural or substantive issues (except maybe whether the presiding officer at the impeachment trial of a former President is the Chief Justice or the Vice President). There is no question of fact regarding what President Trump said and did. Nor is there any question about what ensued. Indeed, members of the House and Senate are eyewitnesses to events. Moreover, there is no question whether the incitement of violence to interfere with the constitutional election process is a “high crime” or “misdemeanor.”

There are two important procedural points relating to the second impeachment that are well-established. First the Senate may try a former official who has been impeached by the House. When the House impeached President Grant’s Secretary of War, William Belknap, Belknap resigned from office. The Senate voted 37-29 that it retained jurisdiction despite Belknap’s resignation. Second, the Constitution provides that an officer who is impeached and convicted is automatically removed from office (impeachment is not necessary to remove Trump from office, that will happen at noon on January 20). The second impeachment is not redundant; the Constitution authorizes the Senate to impose the additional punishment of barring the impeached and convicted officer from ever holding federal office (including the presidency) in the future. This punishment requires only a simple majority vote and may be imposed as long as the officer has been duly convicted (i.e., by a 2/3 vote).

Ultimately, there is one enduring principle of impeachments that defined the first Trump impeachment and will define the second as well. As I put it last year, because the Senate may only convict by a 2/3 supermajority, “As  a practical matter, … impeachment must be a bipartisan undertaking, otherwise any impeachment by the House is an empty, symbolic exercise.” For the first impeachment, Republicans in the House and Senate (Justin Amash and Mitt Romney notwithstanding) simply refused to go along and recognize the President’s actions for what they were. There is every reason to hope this second impeachment will be different. Numerous Republicans have already expressed either their openness to considering impeachment and conviction, or have voiced an outright demand that the president leave office. It should not be controversial that Donald Trump has waged war on Democracy, that this is a high crime, and that he should be disqualified from ever holding office again.

It’s Time to End the Federal Death Penalty And Empty Death Row

President Biden, in one of his first acts upon taking office, should shut down the machinery of death that Donald Trump has revved up to unprecedented levels and put us on a path to ending the federal death penalty once and for all.

Never before in modern history has a lame-duck president had the contempt for the voters to execute even one person during a presidential transition. President Trump, despite losing re-election to a candidate with a platform that included eliminating the federal death penalty, remains undeterred. On January 12, just over a week before President-elect Biden will be sworn into office, the federal government plans to execute Lisa Montgomery, followed two days later by Corey Johnson, followed the next day by Dustin Higgs. The six people executed or still facing federal execution during this lame duck include two people with intellectual disabilities; one of the youngest people ever to receive a federal death sentence; a severely traumatized and mentally ill person who is the only woman on federal death row; and two men who did not kill anyone. All five men are African American.

Moreover, since lifting a seventeen-year moratorium on federal executions six months ago, the Trump administration has executed more people than the federal government had executed in the preceding sixty year. By the time President Trump’s term ends, his administration will have overseen more than a quarter of the federal executions performed in the past century. Not since before the turn of the twentieth century—if ever—has the federal government executed so many Americans in such rapid succession.

This should be alarming for anyone who values the dignity of human life. And at a time when so many in the country are for the first time acknowledging the racism in our criminal legal system, the disturbing escalation of federal executions takes on even grimmer salience and concern. Almost sixty percent of federal death row inmates are men of color, with Black men comprising nearly half the death row population—far exceeding their percentage in the U.S. population. Conversely, seventy percent of the executions conducted by the Trump administration have been cases in which all the victims who died were white. Any honest assessment can only conclude that systemic racism is inextricably tied to this nation’s capital punishment regimes.

President-elect Biden’s commitment to work with Congress to eliminate the federal death penalty is laudable, and many Republicans realize that the time to end the death penalty has come. Upon assuming office, though, he should immediately use his executive clemency power to commute the sentences of all current federal death row inmates to life without parole. This one act of compassion and humanity would empty the federal death row. It would also demonstrate President Biden’s committed opposition to the death penalty.

There is more President Biden could do, even without Congress’s cooperation. He should direct the Department of Justice not to authorize new capital prosecutions and to de-authorize any pending capital prosecutions. Closing the federal death row and halting resource-intensive capital prosecutions will also foreclose many otherwise necessary appeals. An ancillary benefit is that money saved by avoiding the need for an expensive death row and extensive litigation could be better used by the Department of Justice and the Federal Bureau of Prisons to allocate resources based on security risk, not sentencing arbitrariness, address the devastation the COVID-19 pandemic has wrought in federal prisons, and fund a comprehensive study by DOJ of the effect of race on the use of the death penalty at the federal and state level.

Emptying the federal death row and halting any new capital prosecution will also prevent, at least for a time, a repeat by future administrations of the horrific carnage we have witnessed in the past six months. While the Obama administration had its reservations about the death penalty—as evidenced by their decision to leave the moratorium in place—it failed to take bold action. Without the more than sixty people on federal death row when he took office, President Trump would have been unable to engage in his historic killing spree. The Biden-Harris administration should not hesitate to take the first, bold steps in joining so many states that have already abolished the death penalty and leading the rest of the nation to end this barbaric practice.

Russ Feingold is the President of the American Constitution Society. He served as a United States Senator from Wisconsin from 1993 to 2011.

Our Constitution Has Failed: It’s Time for a New One

One of the first steps in dealing with a problem is understanding it. It looks like we have (at least) several major problems in the United States today:

  • a president who refuses to accept the results of an election he lost and, in the words of Rep. Liz Cheney (R-WY) “incited [a] mob” to carry out “a violent…assault [on] the U.S. Capitol” on Wednesday
  • more than 350,000 Americans dead in less than a year from a pandemic that has also caused widespread economic distress
  • a sweeping cyberattack against government and private entities in the US
  • deadly racial injustice that prompts mass protest yet continues unabated
  • a climate crisis that promises only to get worse.

These crises have different causes, but our inability to mitigate them--or, in many ways, even to try--is fundamentally the result of one central problem--a failed constitutional system that has left the United States unable to respond to national challenges and unable even to defend democracy itself against an existential internal threat.

The Constitution’s failure to do what we reasonably expect it to do helps explain our inability to address the crises listed above. The framers created the Constitution when the government described by the Articles of Confederation proved too weak to make the country work (one of the central concerns on their mind was the national government’s inability to suppress an insurrection in the winter of 1786, a concern all too relevant this week). In its original form, the Constitution did not fully provide for what is now called a liberal democracy--a system with free and fair elections, individual rights, limits on the power of the majority as well as government officials, and the rule of law.  Over the past 233 years, a modern liberal democracy ultimately, though painfully, emerged--based both on the verbal promises now contained in an amended Constitution as well as informal norms.  The constitutional system also evolved to provide the government with authority needed to address new challenges. As Supreme Court Justice Robert H. Jackson wrote in 1952, the Constitution “contemplates that practice will integrate the dispersed powers [of the federal government] into a workable government”--a government with the power necessary to fulfill its assigned responsibilities.

Our system depends on a delicate balance--a government strong enough to capably respond to pressing national problems, yet not so unchecked that officeholders are able to shrug off limits on power and rule as authoritarians.  A government too weak to carry out its responsibilities (like the government under the failed Articles of Confederation) is a failed government. A government with a president who rejects the notion of limits on his or her power is also a failed government.

At the moment, we are experiencing both kinds of failures. One example of the first kind of failure--a government incapable of performing its duties--is the response to the pandemic. Vaccines are, thankfully (though somewhat haphazardly) being rolled out--but in the meantime, we collectively accept record-setting death tolls unmatched in other countries. No one could magically make the virus disappear, but President Trump has decided he will not even try. When it comes to the pandemic, we are effectively operating with the functional equivalent of no president. As Maryland Gov. Larry Hogan put it, “in the worst part of the battle, the general was missing in action”. In a functioning system, members of Congress would use available constitutional tools to force a change in course. In our failed system, that won’t happen--no matter how high the death toll rises.

The failure even to try when it comes to central aspects of the pandemic is a failure of weakness--what Kim Lane Scheppele and David Pozen call “executive underreach”. Trump’s reaction to the election is one example from the flip side of the coin--dramatic overreach aimed at illegitimately overturning the results. Last month, there were reports that Trump asked advisers about the possibility of “impos[ing] and deploy[ing] the military to “rerun” the election.” In a clear indication that there were real concerns about what could happen, all 10 living former defense secretaries signed on to an extraordinary op-ed calling on current Department of Defense officials to “refrain from any political actions that undermine the results of the election…” As political scientist Brendan Nyhan pointed out, “the fact that a coup is being considered and the President is not being immediately impeached and removed from office is a sign of profound democratic erosion.”

It is clear that Trump will desperately try all he can to hang on to power. Last week, we learned that the president pressured Georgia’s secretary of state to reverse his electoral defeat in that state. Trump’s brazen efforts to overturn the results of a free and fair election were caught in an audio recording. A few days later, many Americans watched in horror on live television as Trump supporters breached security, occupied the Capitol, and forced members of Congress to abandon the formal process of recognizing Joe Biden’s election victory, seeking cover from an angry mob incited by the president. Former Attorney General William Barr put into words what was obvious: Trump had “orchestrat[ed] a mob to pressure Congress” in a “betrayal of his office”. Sen. Mitt Romney (R-UT) put it even more bluntly, declaring that “what happened [at the Capitol] was an insurrection, incited by the President of the United States”.

In a functioning system, Republicans would have joined with Democrats to immediately remove Trump from office.  In our failed system, although some legislators circulated articles of impeachment the day after the assault on the Capitol, there is little indication that Congress will take the prompt action necessary to protect the nation; in fact, the House and Senate are out of session for more than ten days. Speaker of the House Nancy Pelosi has called on Vice President Mike Pence and the cabinet to invoke the 25th Amendment; if not, she says the House will begin impeachment proceedings. It is unclear whether Republicans would join Democrats, and whether senators would even be available to act, given that many may have already left the capital city. If there is not prompt action the rest of us will be left to keep our fingers crossed and hope there is no repeat of the January 6 uprising in the nearly two weeks days left until Biden’s inauguration.

Recognizing that our Constitution has failed is not to say that all hope is lost. Some important safeguards--the courts, state and local officials, the military--have held up. But this offers only a temporary reprieve from the dangers of both disabling gridlock that leaves government unable to take on national problems and authoritarian overreach that seeks to put an end to constitutional democracy itself.

No system can guarantee its survival, but if the Constitution has failed, we can think creatively about how to increase the odds in favor of liberal democracy. We need a constitution that is both more liberal, with more effective limits on power as well as improved safeguards against corrupt (or even insurrectionist) government officials and more democratic, with a majority of votes required to win presidential elections and gain control of both chambers of Congress. When the Articles of Confederation failed, the framers started over with a new constitution. Something similar is needed today, although at the moment, the prospect of drafting a new constitution is wildly implausible.  It’s past time, however, to consider the cost of inaction. If we do nothing, these pathologies will persist.  We need creative thinking to find a solution to the problem of our Constitution’s failure.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He has written two books on presidential power. Follow him @ChrisEdelson on Twitter.

As a former federal prosecutor and judge, I believe Lisa Montgomery deserves clemency

One of the heaviest burdens I had as a prosecutor was my responsibility as a minister of justice. I was not simply an advocate; I, like all my colleagues, had ethical and professional obligations to ensure that defendants were accorded procedural justice, that guilt was decided upon the basis of sufficient evidence, and that special precautions were taken to prevent and remedy injustices.

I and my colleagues took this responsibility seriously, especially when children were the victims of crimes. We witnessed the shattering physical and psychological effects of the trauma that children suffer when adults abuse them. It’s something you never forget.

Lisa Montgomery was one of those child victims. Lisa was raped, repeatedly and violently, from the time she was eleven years old. As a young teenager, she was trafficked by her own mother, who allowed groups of adult men to gang rape her. Lisa’s childhood consisted of constant physical and psychological abuse.

Lisa told people about these crimes, including a cousin who was a police officer, but no one intervened. Neither her mother nor any of her rapists was ever prosecuted. The criminal justice system failed Lisa Montgomery during her childhood.

Lisa’s life didn’t improve. Her mother forced her into an abusive marriage with her stepbrother at age 18. By then, Lisa had developed a dissociative disorder as her mind broke from reality to protect her against the violence inflicted on her body. This trauma-induced mental illness compounded the organic brain damage Lisa suffered due to her mother’s heavy alcohol use during pregnancy and a genetic predisposition to mental illness from both sides of her family. Finally, in the grip of a psychotic break, Lisa committed a tragic and terrible crime when she killed a young woman and took that woman’s unborn child to care as her own.

At her trial, the criminal justice system failed Lisa again. There was no recognition of Lisa as the profoundly mentally ill victim of lifelong trauma. Federal prosecutors dismissed her experiences as an “abuse excuse.” Although Lisa expressed deep remorse and offered to plead guilty in exchange for a life without parole sentence, prosecutors insisted on seeking and securing a death sentence against her.

Lisa’s history of trauma is not an excuse for her crime, but it provides an important explanation that is relevant to her punishment.  I believe a jury that meaningfully understood her history would not have given her a death sentence.  Lisa is the only woman in America facing execution for the type of crime she committed, though the sad fact is that several other women have committed similar offenses. That is because such crimes invariably result from serious mental illness; in all but Lisa’s case, other prosecutors recognized that such circumstances do not warrant capital punishment.

Many prosecutors are so intent on winning that they forget their true job is to achieve justice. In Lisa’s case, accepting her offer to plead guilty and be sentenced to life imprisonment would have been the kind of justice that is appropriate in this case.

On the other hand, executing Lisa Montgomery would just be one more failure of the criminal justice system. She is scheduled for execution on Tuesday, January 12. President Trump can and should commute Lisa’s death sentence to life imprisonment without possibility of release.

Stephen G. Larson is a former federal prosecutor and former U.S. District Judge who presently practices civil litigation, criminal defense, and appellate advocacy in Los Angeles and Washington D.C.