Federal Courts Exam 2019: Sorry, No Fake Tweets on this One

by Michael C. Dorf

Per my custom this time of year, I provide below my Federal Courts exam. I apologized to my students that it is not as funny as some of my prior ones, although I think the issues it raises are just as challenging and important as those raised by prior exams.  I did not have the urge this time to create a fake Trump tweet.

Students were given 8 hours to complete the open-book take-home exam. As usual, blog readers should feel free to submit answers (which I won't grade) in the comments.

Trump's Snowflake Voters (A Dorf on Law Classic)

Note to readers: This is the first of this year's "classic" columns, i.e., an opportunity for Dorf on Law to take a break for the holidays while giving interested readers an opportunity to read some of our favorite recent columns.  This piece was first published on January 27, 2017, a week into Donald Trump's presidency.  Although I believe that it holds up rather well, I will note that the sixth paragraph includes this: "More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp."  Hmmm.  How well has that optimistic belief held up?  In any case, enjoy!


 by Neil H. Buchanan

There is now a received wisdom about the 2016 election that goes something like this: Trump was inevitably going to win, and the reason no one saw it coming was that journalists live in liberal bubbles in coastal cities and do not know any Trump voters.

If only these journalists had "gotten out there" and interviewed Real Americans, rather than holding them in contempt, they would have felt -- really felt -- the pain of these voters.  This story then holds that those angry voters naturally voted for Trump because he is the ultimate outsider, and they felt in their guts that his solutions were just what is needed to reverse the pain in their lives.  Sticking it to those annoying elitists was an added bonus.

But what if that received wisdom is wrong?  More importantly, what if this new conventional wisdom is actually more condescending to voters -- more the result of the liberal bubble inhabitants' biases and groupthink than of actually applying logic to evidence -- than the supposedly arrogant narrative that it replaced?

I offered an initial assessment of this already-established narrative back on December 1, quoting one analyst who wrote: "Trump is president because of a regional revolt ... .  White people generally didn’t deliver the White House to Trump, however much they enabled him; the Rust Belt did."

As that quote implies, everyone is trying very hard only to talk about the Trump voters who are not racists or otherwise bigoted.  For obvious reasons, the question of race in the election is a sensitive one, as I have explored recently.  (See here and here.)

More to the point, those of us who oppose Trump are optimistic enough to believe that a large number of his current supporters are not permanently in his camp.  Yes, Trump has undeniably brought some ugliness into the mainstream, not all of which will go away any time soon.  But we need to believe that most people are inherently good.

The instant consensus noted above -- that liberal journalists missed the real story -- relies in large part on the idea that Trump won his sliver-thin margins in several now-post-industrial states by flipping formerly Democratic voters to his side.  If that really is the story, then the last two and a half months of hand wringing about those white working class voters is obviously a necessary step in Democrats' efforts to return to political prominence.

The problem is that the data never quite told the story that everyone now thinks is true.  The same day that I wrote about "reaching the reachable Trump voters," in fact, two scholars published a piece in Slate in which they looked at voting data from what they called the Rust Belt 5 -- Iowa, Michigan, Ohio, Pennsylvania, and Wisconsin.  The story they tell is quite interesting and surprising.

As everyone should know by now, three of those states (Michigan, Pennsylvania, and Wisconsin) provided the Electoral College edge for Trump.  As I calculated recently, if fewer than 54,000 Trump voters in those three states had flipped to Clinton, we would not currently be scratching our heads about "alternative facts" or worrying about trade wars (and shooting wars).

The authors of the Slate piece, Konstantin Kilibarda and Daria Roithmayr, point out that the data support a distinctly different story from the "angry white working class voters flocked to Trump" narrative.  It is not that the raw vote totals are wrong, so it does remain true that the equivalent of the population of Elyria, Ohio swung the election for Trump.  That by itself remains an astonishing fact.

Kilibarda and Roithmayr, however, describe the so-called Rust Belt revolt as a myth because "[t]he real story—the one the pundits missed—is that voters who fled the Democrats in the Rust Belt 5 were twice as likely either to vote for a third party or to stay at home than to embrace Trump."

Overall, more than a half million under-$50,000 voters who had voted for Obama in 2012 did not vote at all in 2016.  Furthermore, fewer than two-thirds of the white voters who had voted for Obama in 2012 voted for Trump last year, and those who stayed home or who voted for a third party totaled 220,000 -- more than enough to swing the election for Clinton.

So even if we are looking only for data to support the angry-working-class-whites narrative, we end up with a chunk of those voters who never embraced Clinton but who certainly could not join their angry friends at Trump rallies.

In addition, the Republicans picked up as many voters in those states whose incomes are above $100,000 annually as they did among voters who earn less than $50,000.  It was not really a working class revolt after all.

More shockingly, Democrats also lost 400,000 votes among the "black, indigenous, and other people of color (BIPOC) vote," compared to 2012.  One third of those voters, for reasons known only to them, voted for Trump in 2016.  Put another way, more than 260,000 Democratic voters of color fell away in 2016 by not voting or by voting for a third-party candidate.

Therefore, the notion that down-on-their-luck white voters flipped to Trump is not exactly wrong -- enough such voters did so to make up the deficit that Clinton needed, many times over -- but only motivated thinking by pundits could have turned this into the dominant theme of the post-election discussion.

In some ways, this distorted pundit-led discussion is an example of what can usefully be called an insta-consensus.  On election night, shocked analysts were casting about for a story to tell, and Trump's bigoted campaign rhetoric all but begged for that story to be about angry white voters.  Everyone was being sensitive not to call the white Trump voters themselves bigots, so this had to be spun as a story about misunderstood downscale white people.

This kind of distorted insta-consensus is actually all too common.  Perhaps the most dramatic example is the completely false narrative that emerged after the mass shooting at Columbine High School in 1999.  The entire story that was told about that horrific event -- a "trench-coat" mafia of goth-obsessed kids wreaking revenge on the popular jocks who had tormented them -- turned out to be utterly false.  Yes, I was surprised, too.

Although that example is extreme, the 2016 election post mortem is in its own way just as misguided.

Because so many liberals are willing to believe the negative stereotypes that they hear about themselves -- "Well, gee, I really don't like tractor pulls, and I do laugh at candidates in the Iowa caucuses when they eat fried cheese" -- I strongly suspect that this new narrative is a peculiar form of penance for people who deep down are ashamed when Sarah Palin describes other places as "the real America."

I recently read a long article by the journalist George Packer in The New Yorker, which was published a week before the election.  It is a fascinating read, in part because it shows that whatever else one might say about Hillary Clinton, she was keenly aware of the populist rumblings among working class voters and was actually quite focused on winning them over.

Packer's piece is not without its weaknesses.  Any journalistic effort that actually takes Thomas Friedman and Charles Murray seriously as thinkers is not on strong ground, after all.  In any event, Packer focuses on the idea that the white voters who were drawn to Trump were understandably angry with supposed liberal elites.

Packer quotes Murray: "The energy coming out of the new lower class really only needed a voice, because they are so pissed off at people like you and me.  We so obviously despise them, we so obviously condescend to them—'flyover country.'"

And there it is again, the supposed condescension and disdain that Trump's voters are now thought to have been rebelling against.  The problem is that all of this solicitude for the feelings of Trump's voters is itself insulting, condescending, and disdainful.  One can imagine Murray and Packer whispering: "Shhhh.  Don't say anything bad about them, because they hate that.  They're very sensitive!"

To use the insult that the pundits on Fox News are now wrongly hurling at college students, people like Packer seem to think that working class white people are "snowflakes" -- fragile, pathetic, and weak losers who will melt if someone says something unpleasant to them.

Surely, no one likes it when others are being condescending.  But I frankly think that working class voters can take it when they find out that their leaders don't like fried butter on a stick.

When I was growing up in a working-class suburb of Toledo, Ohio, we knew that Ohio was the butt of jokes (and within Ohio, Toledo was the butt of jokes).  When I went to college, for example, a kid from a suburb on Long Island (a suburb that was surely no different from my suburb) asked with a smirk, "How many cows do you have on your farm?"  It was stupid, but who cares?  We were stronger than that.

Moreover, as I have pointed out again and again, it is also condescending to Trump's voters to say that they hate elites but somehow they cannot bear to be told that Trump is conning them by installing people in power who really look down on working people.  (When the Koch brothers are not pouring money into Republican campaigns, they are endowing operas and ballets in liberal, disdainful, condescending, elitist New York City.)

People can be stubborn, so we can depend on Trump's voters to deny that they made a mistake in voting for Trump.  Indeed, we can be sure that the non-voters who actually flipped the election to Trump will be even more insistent that their acts of omission were not the reason for Trump's rise.

But it is essential to engage with these voters and non-voters and show them that Trump's promise to bring back the jobs of the fifties and sixties is a cynical lie.  That is going to upset some people, but that is politics.  The alternative is to refuse to engage on the issues at all.

People are not snowflakes, and they can handle adult conversations in which they are challenged to rethink their positions.  For liberal pundits to think otherwise, and to imagine that white working-class voters will suddenly change their views if liberals learn to love pork rinds, is what real condescension looks like.

The Fox Who Stole Merry Christmas

by Michael C. Dorf

For many years, I cheerily wished my Christian friends a "merry Christmas." I'm Jewish but from childhood I had happy associations with Christmas and other events Christians celebrated. Each year, my family helped our Unitarian neighbors trim their tree. On Christmas Day itself, we typically joined our Armenian Apostolic family friends for a festive meal. And I attended the first Communion and Confirmation of a close childhood friend who was Catholic (as he attended my Bar Mitzvah).

Saying "merry Christmas" to my Christian friends was for years simply automatic--a way of acknowledging that in a country blessed with religious freedom, there was nothing remotely uncomfortable, much less political, about extending good wishes to one's friends and neighbors on occasions that they deem significant, even if those occasions hold no special religious significance for me. It didn't occur to me not to wish a friend "happy birthday" simply because it wasn't also my birthday; and likewise, I think I would have been puzzled by the notion that there's anything strange about wishing a Christian a merry Christmas.

But that was all before FoxNews launched its war on what it deemed the War on Christmas.

The Top 5 Supreme Court Cases of the Decade

By Eric Segall

As we leave this decade, I thought it might be interesting to look back over the last ten years and highlight the Supreme Court's five (okay six) most important constitutional law cases. My criteria are my own subjective assessments concerning the decisions' impact on the people of the United States and the development or reversal of constitutional law doctrine.

Scientia Bona Est

by Michael C. Dorf

The title of today's post, "Scientia Bona Est," is the Latin translation of "Knowledge is Good," the motto of Faber College, the fictional setting for the great 1978 film Animal House. It might have inspired the people working for federal Immigration and Customs Enforcement (ICE), who created the fake University of Farmington to lure would-be immigration fraudsters. U of F's motto? Scientia et Labor or "Knowledge and Work." Here's what the university website looked like before ICE deactivated it.

As explained at length in the WaPo story linked above, ICE created the fake university in order to lure non-citizens seeking to overstay student visas as a means of circumventing US immigration laws.  Because U of F had no real classes or faculty or anything else, presumably students who enrolled would quickly realize that it was a scam but assume that the target of the scam was the federal government: Students paid U of F tuition and U of F in turn provided them with extensions on their visas. In fact, it was a sting operation aimed at the students, who were prosecuted and/or deported. Was it a fair and sensible sting? Let's explore.

Warren for President

by Neil H. Buchanan

During the upcoming two weeks that include Christmas and New Year's Day, Dorf on Law will be on partial vacation, with plans for new posts by Professor Dorf tomorrow and Monday of next week but after that, unless something very big happens (certainly a possibility), we expect to post only "classic" posts, if anything.  This is, therefore, likely to be my last new column of the year.

With that in mind, I decided to announce the much-coveted Buchanan endorsement for President of the United States.

Side note: Yes, I'm being self-deprecatingly ironic.  When I was much younger, I wanted to be a "cool" professor and told my students to call me by my first name; but if they could not bring themselves to do that, I said, "you must call me 'Lord High Professor Doctor Buchanan, Sir.'"  I later overheard one student saying to another, "Can you believe the ego on that guy, telling us to call him that?"  Irony is lost on some people, even in person.  So, to be clear, I do not think that my endorsement is coveted by anyone.

In any case, as the headline for this column indicates, I have decided to get off the fence and endorse Senator Elizabeth Warren.  I have written many columns over the past few years in which I have defended her and advanced arguments on which we agree, but I have always offered caveats, such as: "I am not sure whom I want the Democrats to nominate for President."  And I was sincerely unsure.

Now I am sure, and Liz is the one.  Here, I will explain why I think Warren is the Democrats' best choice next year, both as a matter of being a better president but also as the best person to beat Donald Trump in the general election.

GOP Claim that Impeachment Overturns an Election is Spurious but Real Intra-Constitutional Conflict Exists

by Michael C. Dorf

Among the many mutually incompatible and shifting defenses that Donald Trump and his apologists and enablers have offered against his impeachment in the House is the claim that it is an effort to overturn the result of the 2016 election. Like many spurious claims made in bad faith, this one has a point of contact with reality: If the House were to impeach a President of a different political party simply in response to genuine policy differences within the realm of reasonable contestability, that could indeed be an illegitimate effort to overturn the result of the then-most-recent presidential election.

In the prior paragraph, I hedged with phrases like "realm of contestability" and "could" because I regard the impeachment of Andrew Johnson as legitimate, even though it was about a policy difference; that policy difference was whether to reconstruct the Union on more just grounds (the view of Congress) or to frustrate Reconstruction so as to preserve white supremacy and institute apartheid (Johnson's position.) Some policy differences are not mere policy differences. Nonetheless, I will concede that in general, mere policy disagreements, even sharp ones, do not afford permissible grounds for impeachment. There must be evidence of treason, bribery, or other high crimes or misdemeanors. The Constitution says as much.

Accordingly, if it were true that the House Democrats were motivated to support Trump's impeachment by disagreement with his policies or even by dislike of his personal style, that would be problematic. But of course that's not remotely true. The Republican claim that Democrats are acting improperly or unconstitutionally by using impeachment to overturn the result of a Presidential election is thus wholly parasitic on the further claim that there is insufficient evidence that Trump has engaged in impeachable conduct. The Republican strategy is like a defense attorney arguing to the jury that the jury can't convict someone if he didn't commit the crime charged when the jury believes the evidence shows that he did commit the crime charged. It's true sort of, but it's a non sequitur.

Why Did the U.S. Constitutional Breakdown Take So Long?

by Neil H. Buchanan

Now that the Senate Republicans have made it clear that they have no intention of running an honest trial of the impeachment of Donald Trump that the House will soon approve, non-Republicans and NeverTrumpers alike are trying to figure out what to do next.  The problem, of course, is that the Constitution is not self-enforcing; and even if it were, it is being exposed as hopelessly inadequate to the current task.

Take the bare language of the two procedural impeachment clauses.  The last clause of Article I, Section 2 reads in full: "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." The last clause of Article I, Section 3 reads in full: "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present."

That is it.  Note that the Senate's role is described in maddeningly vague terms: "... the sole power to try all impeachments."  Is that permissive or not, that is, does it mean that the Senate MUST try all impeachments or that it has the power to try all impeachments IF IT FEELS LIKE IT?  After all, I have the power to sing my high school's fight song backward every morning, but I have never chosen to exercise the power.  Even if I were given that power solely, would I have to do so?

Apparently, Moscow Mitch is planning to abuse the vagueness of that clause differently, not by refusing to try the impeachment but by refusing to try the impeachment with any seriousness or impartiality -- that is, by simply misinterpreting the keyword "try" to mean whatever he wants it to mean.  And even though Senate rules require members to swear oaths to be impartial jurors, those rules could be changed by a simple majority vote (but for obvious optical reasons will not be) or simply ignored.  Moreover, there is virtually no possibility that the courts would deem this justiciable.

I will offer a few thoughts about the "What now?" question presently.  More importantly, I will talk about why it took so many years for the U.S. to reach the point where gaping weaknesses in the Constitution -- indeed, weaknesses in the very nature of constitutional democracy -- are finally being exploited.  What took so long?

When Madison Avenue and Pennsylvania Avenue Merge: A Review of "Political Brands"

By Eric Segall

If you are worried about the state of our political system in the age of Facebook advertising, Russian interference in our elections, dark money in politics, and President Trump’s Twitter account, among many other disturbing trends, Professor Ciara Torres-Spelliscy’s wonderful new book “Political Brands” is unlikely to make you feel any better. However, it will make you much better informed regarding the many threats facing American democracy. I strongly recommend this book to anyone interested in how Madison Avenue and political movements have merged to present new and unique risks to our representative, constitutional democracy.

What If the Democrats Had Not Pursued Impeachment?

by Neil H. Buchanan

Both The New York Times and The Washington Post, as of this writing, are running front-page articles that claim that the impeachment process will be good for Donald Trump in next year's election.  Both stories, however, are notably weak when trying to back up that point (and do not even really try).

The Times's article merely says that Trump himself "thinks that it will help him on the campaign trail" (and the embedded link takes readers to an earlier Times article that says that Trump thinks impeachment will help him).  More interestingly, the story ends with a prediction, noting that "Mr. Trump’s advisers worry about ... the snapback of his anger once the impeachment process is over. They predict he will be furious, and looking for payback."  The invertebrate Lindsey Graham reportedly told Trump not to do that, apparently because it would be bad for his election, so even the most craven Republicans do not think this is necessarily good for Trump.

The Post's article, meanwhile, merely reports that the Trump reelection campaign is pushing the line that impeachment will be good for him.  But what else are they going to say -- both because they dare not disagree with Trump and, more importantly, because their job is to say things like that?  Trump's campaign manager is quoted as follows: "This lit up our base, lit up the people that are supporters of the president. They’re frustrated, they’re upset, and that motivates voters.  They [presumably he means the Democrats] have ignited a flame underneath them [presumably he means Trump's supporters].  ... That has put money in our bank [campaign donations]. It has added volunteers to our field program.  It’s filled up the rallies easier."

To which one can only respond: I call BS.  That is absolutely a nonsensical argument, as I will explain.  More to the point, even if it were true, there is no way that the Democrats could have done anything differently.  This is therefore, at worst, major papers amplifying Trump's spin.  At best, it is evidence-free Monday-morning quarterbacking.

How to Prevent Recruit-to-Deny and Reject-to-Preempt Admissions Strategies

by Michael C. Dorf

A recent NY Times article highlights one of the more despicable practices one sees in the college admissions game -- what has come to be known as "recruit to deny." Here's how it works: US News and other purveyors of college ratings and rankings include "selectivity" among the factors on which they evaluate colleges. The harder it is to get into a college, the more selective that college is. Selectivity is expressed as a ratio of applicants who are admitted to applicants who apply: The lower the ratio, the more selective the college. A college can improve (i.e., decrease) its selectivity ratio by increasing the denominator, i.e., by encouraging applications from more students it expects to reject. (Encouraging applications from students a college expects to accept will decrease selectivity, because it will increase the numerator as well as the denominator, and thus in general increase the ratio.) Accordingly, as the Times article notes, many colleges reach out to prospective applicants with recruiting material, creating false hope that they will be admitted, when the college only values them as filler for the denominator. Such colleges "recruit to deny."

The practice is despicable for various obvious reasons. Sometimes colleges waive application fees for students they recruit to deny, but not always. When they don't, they waste those applicants' fees. Even if a college waives its application fee, there are fees associated with sending standardized test scores. There is also a cost in time. Although most colleges accept the so-called "common application," submitting additional applications can nonetheless be time-consuming, because many colleges have specialized additional questions they ask. Applicants who are recruited so the college can deny their applications might also waste their (and their parents') time and money by visiting the campus. They might make costly decisions to forgo certain other applications to colleges that would actually have admitted them. At the end of the process, there is both the sting of rejection and the sense of betrayal. I imagine a great many applicants who were victims of recruit-to-deny efforts feeling more than a little miffed that a college that went out of its way to tell them how great they were then rejected them.

Below, I'll offer a simple suggestion for eliminating the incentive for recruit-to-deny. But first I want to make a couple of observations about how it fits with other admissions practices.

The Articles of Impeachment, the Burden of Proof, and Propensity Evidence

by Michael C. Dorf

In the run-up to yesterday's release of proposed articles of impeachment against Donald Trump, commentators speculated about whether the House would issue articles focused entirely on Trump's corrupt actions regarding Ukraine or also include other matters, especially those relating to events described in the Mueller Report. At least three rationales were offered for articles of impeachment going beyond the Ukraine affair.

First, some commentators thought it might be helpful to moderate/freshmen Democrats in swing districts who won their seats by focusing on such pocketbook issues as health insurance to have multiple articles so that they could vote for some and against others. Doing so would ostensibly show to their fence-sitting constituents that they were going along with impeachment reluctantly and out of a sense of duty but were still moderates; that's why they only voted for two of the articles, these Democrats could say. I'm not sure who originated this idea, but it never made much sense to me. Swing voters tend to be relatively low-information voters. It is hard to see that any such voters would oppose impeachment (even if they generally dislike Trump) but be  assuaged that their representative voted for only two out of three (or four or more) articles of impeachment.

Second, other commentators suggested that it was important to include obstruction of justice based on Volume II of the Mueller Report, because obstruction of justice is a crime, whereas the two articles that the House Judiciary Committee produced yesterday--"abuse of power" and "obstruction of Congress"--are not crimes. These commentators acknowledge that an act can amount to treason, bribery, or some other high crime or misdemeanor within the meaning of the Constitution even if it is not a crime as defined by statute. Indeed, all of the law professors who testified last week, including Jonathan Turley, acknowledged that. Nonetheless, I have heard it said that Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment, so that including a criminal charge would head off this argument.

This line of reasoning was naive. If anything is clear by now, it's that Republican apologists for Trump will say whatever is convenient, regardless of its consistency with other things they have said just a few seconds earlier. A charge based on the Mueller Report's well-documented catalogue of obstructive acts would be met with the claim that the Report exonerated Trump. That would be untrue, of course, but Republicans who are willing to say that the Constitution only allows impeachment for statutory offenses are also willing to say that Mueller exonerated Trump, climate change is a hoax, the Earth is flat, or whatever it takes. Articles of impeachment oughtn't to be based on taking away Republican talking points with facts. That's impossible.

Third, some people argued for including charges involving Russian interference with the 2016 election and obstruction of the investigation thereof because the Ukraine Affair is a continuation of that same scheme. This, to my mind, was a fair point. Putin's agents created the conspiracy theory that Ukraine, rather than Russia, interfered with the 2016 election, and the military aid for Ukraine that Trump delayed sending to Ukraine until his scheme was exposed was aimed at combating Russian aggression. Accordingly, including Russia-related charges would have made sense on relevance grounds.

Nonetheless, I trust the political judgment of the Democratic House leadership in proposing two relatively narrow articles of impeachment. And besides, the proposed articles are not all that narrow. In particular, they invoke the Russian connection repeatedly.

The Not-All-That-Blurry Lines of Public Intellectualism

by Neil H. Buchanan

In my most recent Dorf on Law column, I wrote that my former George Washington Law School colleague Jonathan Turley "is a media hound, second only perhaps to Alan Dershowitz in his apparent willingness to go onto any show and say anything, no matter how ill-conceived, if it means being on TV."  I admit that this was rather rough treatment, and it became even more so when I ended the column by saying that although Turley is not apparently in favor of the evils of Trumpism, he is willing to do things that further those evils because Turley elevates his own vanity above other values.

This kind of bare-knuckled assessment should, of course, at least cause the accuser (me) to pause and ask whether pointing the finger at an egomaniac is the classic case of having three fingers pointed back at himself.  (Aside: Is that a mixed metaphor, even though it is all about fingers?  Never mind.)  Yesterday's Dorf on Law column by Professor Eric Segall was much more kind than that, but Professor Dorf's comment on that column raised this broader question not only about me but about himself.  After all, this blog is its own form of showing off what the writers believe to be their worthy insights, and

"[e]ach of us wrestles with how far to venture beyond our respective core expertises and reciting 'just the law' in speaking to the public. Those of us who write for this blog have a more restrictive view of our role than Prof Turley has of his role, but there are many others in our profession who have a still more restrictive view than we do and would thus regard us as media hounds (or worse)."

To be very clear, I do not feel that either Professor Segall or Professor Dorf "called me out" in any way.  Instead, I took their comments as an opportunity to call myself on the carpet and ask what exactly I think that I am doing via the public intellectual activities that take up significant amounts of my time.

So as not to bury the lead, I will state up front that although I agree that the lines between acceptable and unacceptable behavior are not always clear, there is much more than a you-know-it-when-you-see-it inquiry when thinking about public intellectualism.

What are Law Professors for Anyway?

By Eric Segall

As I watched three of my favorite colleagues and Jonathan Turley testify in front of Congress last week, I couldn't help wondering what should be the appropriate role for law professors in current political and legal disputes. Obviously the impeachment hearings raise this issue but so do amicus briefs, letters signed by law professors taking positions on major policy questions, and even media appearances and professorial use of social media platforms. In this post, I raise a few questions and suggest a few tentative thoughts, but, with one exception, do not provide strong opinions.

Professors, Impeachment, and Vanity

by Neil H. Buchanan

Earlier this year, I ended a 12-year stint on the faculty of The George Washington University Law School.  As such, I have been asked (off-list) whether I have any comments about my former colleague Jonathan Turley's testimony at the House Judiciary Committee's hearing earlier this week.  I have plenty of thoughts, but I will warn readers in advance that I have no juicy "insider goss" to share.

Turley was the legal witness called by the House Republicans at the hearing to make their case against impeaching Donald Trump.  Turley's testimony and comments have already received a great deal of attention (much of it extremely negative, and deservedly so), including in part of Professor Dorf's excellent column yesterday.  Turley's performance gave me even more reason to feel happy about my recent change in academic affiliation.

Below, I will discuss the substance, such as it is, of Turley's testimony.  But because so much commentary has already poured forth from smart people, all asking in one way or another, "What the hell is Turley thinking?!" it makes sense to think about the testifier in addition to his testimony.

House Judiciary Committee Meets the Law Professoriate

by Michael C. Dorf

I did not watch all or even most of yesterday's hearing before the House Judiciary Committee, due to the press of teaching and other obligations. Accordingly, I do not purport to offer anything like a comprehensive assessment. Instead, I'll make brief remarks about the testimony of each of the four panelists.

Impeachability, Mootness, and Legal Realism

by Michael C. Dorf

Today the House Judiciary Committee will hear from four legal scholars. (The hearing livestreams here, beginning at 10 am). Three, called by Democrats, will surely say that President Trump's various misdeeds--using the prospect of a White House meeting and Congressionally appropriated money for a besieged Ukraine as leverage to pressure the Ukrainian President to announce (but not necessarily conduct) an investigation of Hunter and Joe Biden, as well as obstructing the Congressional investigation of those acts--readily satisfy the constitutional standard for impeachment. The fourth, called by Republicans, will say that the public record does not disclose sufficient grounds for impeachment.

Lest there be any doubt, I agree with the former view. Donald Trump is manifestly unfit for office. His behavior with respect to Ukraine is a particularly good fit for the text of the impeachment clause, because whether or not he technically committed an act of attempted bribery, by abusing public resources for private gain--and at the expense of national security to boot--he clearly committed acts in the same ballpark as bribery, which counts as "other high Crimes and Misdemeanors."

Yet while I have loaded the prior paragraph with words connoting certainty (such as "manifestly" and "clearly"), there is nothing resembling bipartisan agreement in the House or Senate regarding Trump. Why not? From my perspective, that's because some number of Republican Representatives and Senators are all-in for Trump, while some other number privately know him to be an amoral venal scoundrel but fear the wrath of GOP primary voters. So I'm right and they're wrong, right?

Well, yes, but that's not my point today. Instead, I want to focus on the malleability of legal reasoning by stepping back and comparing and contrasting the Trump impeachment with the last one, involving President Bill Clinton.

Democratic Nomination Uncertainty and the Buttigieg Problem

by Neil H. Buchanan

In what I consider to be good news, two political scientists published a piece yesterday in The Washington Post showing that the supposed "war" within the Democratic Party is a figment of pundits' imaginations. As the author/pollsters summarize their findings: "[W]e find a surprising amount of agreement among Democrats on major policy issues. Contradicting the conventional wisdom, clearly defined ideological 'lanes' don’t seem to exist in the minds of most voters."

Why is that good news?  Because for someone like me, who is constantly amazed by how many commentators talk about the Democratic Party as if it were still the unfocused group of infighters that we grew up with, it is nice to see evidence that the Democrats truly are unified on policy issues -- and, by the way, taking positions on all of those issues that are very, very popular.

The polls show that voters do not identify themselves in specific camps within the party; and much more to the point, their voting preferences do not show them buying into the hype from an ideologue like, say, The Post's Jennifer Rubin -- whom I respect but who is Suspect #1 in the poorly hidden pundits' conspiracy to make the Democratic primaries an ideological war between centrist and center-left candidates.  (Sorry, the U.S. still does not have any leftist Democrat leaders in terms of policy, and that includes not-actually-Democrats like Bernie Sanders.)

Indeed, the polls show that voters who identify centrists as their first choice choose non-centrists as their second and third choices, and vice versa. Here is a great nugget: "More specifically, in surveys from Oct. 17 to Nov. 13, 35 percent of Biden supporters list Sanders as their No. 2 choice, and 29 percent list Warren. Only 9 percent list Buttigieg. Meanwhile, Sanders supporters are nearly evenly divided in their second-choice candidate: 36 percent say Warren, while 32 percent say Biden."

So it is difficult if not impossible to see actual Democratic voters saying: "I'm a centrist and I hate those lefties who are going to ruin us by making us seem like socialists, so I'm going with Buttigieg if Biden fades, or maybe Klobuchar."  These pollsters appropriately caveat their findings, but this is interesting work that is contrary to the conventional wisdom, to say the least.

Because these are scary times, however, I am unable to take good news as good news.  Where is the bad news?  Mostly, it is embodied in the squeaky-clean supposed "dream candidate" known as Pete Buttigieg.

The Problem With Litigating Executive Privilege in Congressional Testimony

by Michael C. Dorf

Last week was a mixed bag in litigation over the conflict between the Democratic-led House of Representatives and the Trump White House. In the course of ordering former White House Counsel Don McGahn that he must testify before Congress about remaining questions involving Russian interference in the 2016 election and the firing of James Comey, Judge Ketanji Brown Jackson stirringly rejected Trump's claim of blanket immunity for his aides. Surveying key statements and events from the Founding through the present in a scholarly 118-page opinion, she concluded that "the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings."

And yet, in a reminder of an all-too-familiar pattern over the last three years, Trump's loss in a lower federal court was overshadowed by his victory in the Supreme Court. The very same day that Judge Jackson ruled against Trump's assertion of royal prerogative in the McGahn case, the justices granted a stay of the mandate in the DC Circuit case that ordered Trump's accounting firm to deliver his financial records to the House Committee on Oversight and Reform.