My work was cited by President Trump’s attorneys
Today, President Trump’s attorneys filed his trial memorandum. (The document filed last week was merely an “Answer”). My work was cited in two places. Both pieces were written well before the current impeachment process.
First, the attorneys discuss the fact that Chief Justice Robert will not preside at this impeachment trial. In 2019, Seth Barrett Tillman and I wrote about what would happen if Chief Justice Roberts was unable or unwilling to serve at an impeachment trial. In a follow-up post, I discussed whether this question was justiciable. I ultimately did not answer this question, but said the question was open under Walter Nixon v. U.S. Trump’s attorneys suggested the issue was justiciable:
It is also true that, even if the Senate were to convict him without jurisdiction, such a decision would not go unchallenged. If Mr. Trump decides to run again, any non-binding “disqualification” from an unauthorized Senate vote could and would be challenged in a court of law. As scholars across the spectrum have agreed, certain aspects of impeachment are justiciable. For example, if, in a case like this, where “the President was tried by someone other than the Chief Justice,”92 a Court would be likely to hear the matter on review.
FN92: Josh Blackman, What happens if the Chief Justice cannot serve at the Presidential impeachment trial?,The Volokh Conspiracy(Nov.25, 2019), https://reason.com/volokh/2019/11/25/what-happens-ifthe-chief-justice-cannot-serve-at-the-presidential-impeachment-trial/.
Second, the attorneys cited my 2017 Lawfare post on obstruction of Justice. In that post, I first opined that the First Amendment would place limits on the impeachment process. The attorneys quoted a paragraph from my post.
The Constitution must, at a minimum, serve as a limitation on the ability of Congress to impeach for “high crimes and misdemeanors.” As noted by a Constitutional scholar a few years ago, if that were not the case, there would be a host of internal contradictions within the Constitution that could not have been intended by the Framers:
Additional negative restrictions would also extend from the panoply of protections in the Bill of Rights. For example, an officer could not be removed from office for refusing to self-incriminate (Fifth Amendment) or seeking the assistance of counsel in a criminal prosecution (Sixth Amendment). Whatever “high crimes and Misdemeanors” means, it cannot include conduct that is itself protected by the Constitution; such would be an internal contradiction. Or, to frame it in modern doctrine, it would amount to an unconstitutional condition: punishing a person for exercising a right protected by the Constitution.
FN100: Josh Blackman, Obstruction of Justice and the Presidency: Part II, Law
Article from Latest – Reason.com