The Faculty Lounge

No, The House Impeachment Proceeding Is Not Unconstitutional

As I explain today in The American Prospect:

The Conservative Legal Community Is Grasping at Straws to Defend Donald Trump

by Steven Lubet

November 11, 2019

The defense of Donald Trump has taken some strange turns lately, as allies and supporters have constantly had to change their positions—sometimes in a matter of days or hours—in order to justify the president’s shifting moods and explanations. Perhaps the greatest contortion, however, has come from an unexpected source.

Steven Calabresi, the highly respected constitutional law scholar—and my colleague at the Northwestern University Pritzker Law School—recently published an essay claiming that the House of Representatives’ impeachment proceedings are “violating the president’s constitutional rights” to “confront the witnesses against him” in a “speedy and public trial.” To reach this conclusion, Calabresi has to misapply the unambiguous provisions of the Sixth Amendment and completely ignore the equally plain terms of Article I’s definition of the impeachment power.

As a co-founder of the Federalist Society and the current chair of its board of directors, Calabresi ordinarily speaks with great authority on behalf of the conservative legal establishment, which makes this misstep all the more troubling. In the essay, Calabresi argues that “Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.” He then sets out the basic rights afforded to criminal defendants under the Sixth Amendment, and asserts that these rights have been denied to the president by the House of Representatives.

The opening words of the Sixth Amendment—“In all criminal prosecutions”—make it unmistakable that its provisions do not apply to impeachments, which are clearly noncriminal in nature. Impeachment by the House and conviction by the Senate cannot result in imprisonment, fine, or any other criminal penalty. Rather, the only allowable consequences are removal from office and disqualification from future office-holding.

Steven Avery & Search Warrants

Last week’s post discussed how the initial investigation into Aaron Hernandez presents a compelling opportunity for students to learn the Fourth Amendment’s plain view doctrine. This week, we explore just a slice of the investigation that led to the arrest of Steven Avery—widely known from the true-crime documentary series, Making a Murderer.

In summer 1985, Steven Avery was twenty-two years old and a resident of Manitowoc, Wisconsin. Avery worked at his family’s salvage yard, Avery Salvage, which his family had operated since 1965. On July 29, 1985, a fellow Manitowoc resident named Penny Ann Beernsten was jogging along Lake Michigan when she was brutally attacked and raped. During the investigation that followed, Beernsten described her attacker as a white male, approximately 5′6′′, stocky, with brown eyes and long sandy hair, and dressed in a black leather jacket. Manitowoc County Deputy Sheriff Judy Dvorak overhead Beernsten’s description and commented, “[that] sounds like Steven Avery.”

Avery was ultimately arrested, charged, and convicted for the forcible rape of Penny Beernsten. He was sentenced to serve thirty-two years in prison. After eighteen years of that sentence, DNA testing revealed evidence that both exonerated Avery from the rape charge and implicated a man named Gregory Allen, a suspect in similar rape investigations at the time of Avery’s arrest. Avery was released from prison on September 11, 2003. Thirteen months later, he filed a lawsuit for 36 million dollars in damages as compensation for his wrongful imprisonment.

Noel Ignatiev (1940-2019)

Noel Ignatiev has passed away—among many pieces of work my favorite How the Irish Become White.

The Mona Lisa Twins Cover the Beatles

Mona and Lisa Wagner are twins from Austria.

 

Re-posting on the 81st Anniversary of Kristallnacht: Dara Horn on Anne Frank and Holocaust Erasure

Saturday is the 81st anniversary of Kristallnacht, which marked the beginning of the Holocaust. I am therefore re-posting Dara Horn's excellent and important article on Holocaust erasure.

Some TFL readers are probably familiar with the work of the novelist Dara Horn, who has written many fine books.  Her recent article in Smithsonian Magazine raises deeply unsettling questions about the appropriation of Anne Frank’s story in a way that all but obliterates her connection to Judaism and the Holocaust. It is essential reading on the 80th anniversary of Kristallnacht (November 9-10, 1938).

Here are a few key paragraphs:

BECOMING ANNE FRANK

People love dead Jews. Living Jews, not so much.

This disturbing idea was suggested by an incident this past spring at the Anne Frank House, the blockbuster Amsterdam museum built out of Frank’s “Secret Annex,” or in Dutch, “Het Achterhuis [The House Behind],” a series of tiny hidden rooms where the teenage Jewish diarist lived with her family and four other persecuted Jews for over two years, before being captured by Nazis and deported to Auschwitz in 1944. Here’s how much people love dead Jews: Anne Frank’s diary, first published in Dutch in 1947 via her surviving father, Otto Frank, has been translated into 70 languages and has sold over 30 million copies worldwide, and the Anne Frank House now hosts well over a million visitors each year, with reserved tickets selling out months in advance. But when a young employee at the Anne Frank House in 2017 tried to wear his yarmulke to work, his employers told him to hide it under a baseball cap. The museum’s managing director told newspapers that a live Jew in a yarmulke might “interfere” with the museum’s “independent position.” The museum finally relented after deliberating for six months, which seems like a rather long time for the Anne Frank House to ponder whether it was a good idea to force a Jew into hiding.

***

There is an exculpatory ease to embracing this “young girl,” whose murder is almost as convenient for her many enthusiastic readers as it was for her persecutors, who found unarmed Jewish children easier to kill off than the Allied infantry. After all, an Anne Frank who lived might have been a bit upset at the Dutch people who, according to the leading theory, turned in her household and received a reward of approximately $1.40 per Jew. An Anne Frank who lived might not have wanted to represent “the children of the world,” particularly since so much of her diary is preoccupied with a desperate plea to be taken seriously—to not be perceived as a child. Most of all, an Anne Frank who lived might have told people about what she saw at Westerbork, Auschwitz and Bergen-Belsen, and people might not have liked what she had to say.

And here is the most devastating fact of Frank’s posthumous success, which leaves her real experience forever hidden: We know what she would have said, because other people have said it, and we don’t want to hear it.

The entire article is here.

Law and Entrepreneurship Association - Call for Papers

The 14th annual meeting of the Law and Entrepreneurship Association (LEA) will be held on Friday, March 20, 2020, at the University of North Carolina School of Law.

The LEA is a group of legal scholars interested in the topic of entrepreneurship—broadly construed. Scholars include those who write about corporate law and finance, securities, intellectual property, labor and employment law, tax, and other fields related to entrepreneurship and innovation policy. Our annual meeting is an intimate gathering where each participant is expected to read and actively engage with all papers under discussion.

We welcome papers and proposals on all topics relevant to entrepreneurship. Proposals should be comprehensive enough to allow the LEA board to evaluate the aims and likely content of the papers they propose. Papers may be accepted for publication but must not be published prior to the meeting. Works in progress, even those at a relatively early stage, are welcome. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a proposal or paper, please email Professor John Coyle at jfcoyle@email.unc.edu by January 13, 2020.  Please include the subject line: “LEA Submission – {Name}.”

The University of North Carolina is located in Chapel Hill, North Carolina, with easy access to Raleigh-Durham International Airport (RDU).  For additional information, please email Professor John Coyle at jfcoyle@email.unc.edu.

Duke Law Center for Innovation Policy Seeks Faculty Fellow

This just in:

The Center for Innovation Policy (CIP) at Duke Law seeks a Faculty Fellow for the 2020-2021 academic year. The Center brings together technology and business leaders, government officials, legal professionals, and academic experts to promote welfare-enhancing innovation by identifying improvements in federal law and policy focused on intellectual property and technology regulation. It has partnerships with Duke University’s Innovation & Entrepreneurship Initiative, the Center for Entrepreneurship and Innovation at Duke’s Fuqua School of Business, and the Center on Law and Technology at Duke Law. The Faculty Fellow’s duties will include working with Center co-Director Professor Arti Rai on a number of different grant-funded projects and articles involving 1) administrative lever for improving patent quality and 2) the intersection of patents and trade secrecy, particularly in the area of machine learning. The Faculty Fellow will also be able to spend considerable time on independent academic work.

The position will include invitations to all faculty workshops and support for scholarship. The Fellow will also have the option of co-teaching a class with Professor Rai. The starting date is the fall of 2020. The salary for the position will be commensurate with experience. The Faculty Fellow will also receive Duke University benefits. Initial appointment is for one year, renewable upon mutual agreement by the Faculty Fellow and the Center. Candidates should have either a J.D. or a graduate degree in a STEM discipline or quantitative social science.

Duke is an Affirmative Action / Equal Opportunity Employer committed to providing employment opportunity without regard to an individual’s age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex, sexual orientation, or veteran status.
Apply through https://academicjobsonline.org/ajo/jobs/15290. For questions or more information, contact Balfour Smith (bsmith@law.duke.edu).

Northern Illinois Law Seeks Dean

This just in:

Northern Illinois University College of Law seeks a proven and dynamic academic leader with a deep knowledge of and commitment to legal education for the position of Dean of NIU Law.

The dean serves as the chief administrative officer of the college and reports directly to the Executive Vice President and Provost for aspects of the operation of the college, including its instructional, research and scholarly activities, outreach, engagement, and public-service mission. The dean also serves as the senior administrative representative of the college in interacting with internal and external stakeholders.NIU College of Law is dedicated to offering a high quality, legal education at an affordable price. Located just over an hour from the city of Chicago, NIU College of Law is a vibrant school focused on the student experience, experiential education, serving the public interest, diversity, and promoting collegiality within the law school community. Housed in stately Swen Parson Hall in the heart of the NIU campus, the College offers easy access to the Chicago area in a comfortable and tranquil setting for rigorous academic study. NIU College of Law is particularly proud to have been named a top law school nationally for diversity, value, and careers in public interest and government service. Class sizes are traditionally smaller to foster closer connections between students and faculty. The school’s close-knit community and alumni network also connect students to mentors and legal practitioners in Illinois and across the nation. More information can be found at https://www.niu.edu/law.

Aaron Hernandez & the Fourth Amendment’s Plain View Doctrine

Last week’s post discussed how the federal government’s investigation into Alex Levin provides a compelling illustration of the Fourth Amendment’s exclusionary rule. This week’s story begins in 2010 when the New England Patriots acquired Rob Gronkowski and Aaron Hernandez in the NFL Draft. Together, Hernandez and Gronkowski became the first pair of tight-ends in NFL history to each catch five or more touchdown passes, while on the same team, in consecutive seasons. By 2011, the duo was setting records for yardage, receptions, and touchdowns by tight-ends, combining for 169 receptions, 2,237 yards, and 24 touchdowns in that season alone. In recognition of their success, the Patriots offered the dynamic duo the largest contract extensions in NFL history—locking Hernandez and Gronkowski into five-year contracts collectively worth more than $90 million.

But Hernandez’s on-the-field success masked a darker persona away from football. In 2013, just two years after signing his exorbitant contract extension, Hernandez was prosecuted for the murder of Odin Lloyd. By 2017, Hernandez was dead. This post peers into a small facet of the state’s initial investigation into the murder of Odin Lloyd; specifically, the search of Hernandez’s home shortly before his arrest. Although law enforcement had a warrant to search the house, officers seized items not listed in the warrant during its execution. Enter the plain view doctrine.

Justice Ginsburg and the $1 Million Berggruen Prize

A reporter asked me to comment on the ethics of Justice Ginsburg's acceptance of the Berggruen Prize and her donation to charity of the $1 million award. The answer turned out to be complicated, as I explained in an article for The Conversation (I am not responsible for the headline or paragraphing):

Is it ethical for Justice Ruth Bader Ginsburg to accept a $1 million prize? Yes, but it’s hard to explain

October 29, 2019 11.51am EDT

Author: Steven Lubet

Justice Ruth Bader Ginsburg will donate to charity the US$1 million Berggruen Prize for Culture and Philosophy she recently won.

The prize is given annually to a “thinker whose ideas are shaping human self-understanding to advance humankind.”

The recipient of the award was decided by a five-member jury that chose among over 500 nominees and a short list of five finalists.

A million dollars is a big score for a public employee, even if it is generously directed to charity. So it is fair to ask whether there are any ethics problems raised by Justice Ginsburg’s receipt of the prize.

There are significant restrictions on outside income for all federal employees, and $1 million far exceeds the limitations.

No ethics code

The ultimate answer is that there is no problem, for three reasons. But that will take some explaining, because the Supreme Court has obscured its own ethics standards.

I Heard It through the Grapevine

"I Heard It through the Grapevine" was written for Motown Records by Norman Whitfield and Barrett Strong, without an artist in mind. The first recording was by The Miracles in 1966 (Smokey Robinson sang lead, but he was not yet part of the group's name). Berry Gordy, Motown's founder and CEO, was not willing to release that version as a single, although it was later included on an album. Marvin Gaye made the next recording in early 1967, but Gordy again declined to release it as a single because he didn't think it would sell, which turned out to be huge misjudgment. The next recording, an uptempo version by Gladys Knight and the Pips, met with Gordy's approval. Released in September 1967, the Knight rendition charted at number two. Marvin Gaye's cut was finally released the following summer, reaching number one on both the pop and R&B charts, and staying there for seven weeks. It became Motown's all-time best seller (until it was outsold by the Jackson Five in 1970). 

The Marvin Gaye version of "I Heard It through the Grapevine," which Rolling Stone ranked number 81 on its list of the greatest songs of all time, is generally regarded as the classic, as it is far more emotive than versions by Gladys Knight and others (though those are also wonderful; you can't really go wrong with this song). Be sure to check out Gaye's piano and a cappella cuts at the bottom of this post.