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Friday, January 24, 2020

A False Argument About the Impeachment Trial

Some Republican Senators are arguing that calling witnesses in the impeachment trial would lead to litigation and delay the proceedings for months. This assertion is false and sounds like an excuse not to call witnesses.

Nixon v. United States (the case about Judge Nixon, not President Nixon) makes clear that the federal courts have no authority over the manner in which the Senate conducts impeachment trials. Period. This conclusion is firmly supported by the text of the Constitution, which gives the Senate the sole power to try all impeachments. Period. Any other conclusion creates all sorts of problems. Can a federal district court enjoin the Senate from holding the trial? Can that court order the Chief Justice to halt the proceedings? The idea is preposterous and unlawful.

Posted by Gerard Magliocca on January 24, 2020 at 10:31 AM | Permalink

Comments

@Joe

You are correct.

Posted by: thegreatdisappointment | Feb 1, 2020 3:00:11 AM

"Blackmun, Souter, and White agreed with the judgement but argued that completely closing off judicial review was incorrect. So of the six-justice majority, half of them disagree with you."

The ruling was unanimous. There a nine member majority. Six of them joined the Rehnquist opinion (Stevens concurred but joined too).

So 2/3 agreed with him with the other three leaving open extreme cases where the Senate might violate due process (Souter less so than White).

Posted by: Joe | Jan 31, 2020 12:02:19 AM

-ish.

Blackmun, Souter, and White agreed with the judgement but argued that completely closing off judicial review was incorrect. So of the six-justice majority, half of them disagree with you.

Posted by: thegreatdisappointment | Jan 24, 2020 9:29:37 PM

By the way, one may reach, opening statement ( video and full texts ) in the impeachment trial, here:

https://www.c-span.org/video/?c4848052/user-clip-adam-schiff-full-opening-statement-jan-21-2020-senate-impeachment-trial-donald-trump

Posted by: El roam | Jan 24, 2020 1:32:48 PM

Important, but nothing to do with the legal or constitutional fact indeed, that courts can't intervene ( unless severe issue of due process is clearly manifested one may argue ). Anyway, the original rules of the Senate, dictates clearly, I quote relevant part of rule 110:

" .....But nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate.

Yet, the new finalized rules, seems to restrict it. One can reach it here (parts written in hand unfortunately ):

https://assets.documentcloud.org/documents/6664604/S-Res-483-Final-Version-Pending.pdf

Thanks

Posted by: El roam | Jan 24, 2020 12:08:10 PM

So, if the Senate subpoenas a witness, said witness refuses to appear, or the President asserts executive privilege to prevent said witness from answering relevant questions, what's the remedy if not through the courts? (Not challenging your analysis, just curious.)

Posted by: Hither & Anon | Jan 24, 2020 10:56:23 AM

So, if the Senate subpoenas a witness, said witness refuses to appear, or the President asserts executive privilege to prevent said witness from answering relevant questions, what's the remedy if not through the courts? (Not challenging your analysis, just curious.)

Posted by: Hither & Anon | Jan 24, 2020 10:56:23 AM

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