Pat Cipollone and Jay Sekulow (Chip Somodevilla/Alex Wong/Getty Images/Salon)

So much for "originalism": Trump's impeachment defense is a constitutional Dumpster fire

Conservatives supposedly believe in constitutional "originalism" — but now they're dumping it to defend Trump


Paul Rosenberg
January 25, 2020 5:00PM (UTC)

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In the absence of any exculpatory evidence, Donald Trump's defense against impeachment increasingly relies on arguments that fly directly in the face of the Constitution. Trump himself set the standard last July with his grandiose claim that "Article II says I can do anything I want," which encountered no serious pushback from his fellow Republicans.

Less blatant absurdities are Trump's arguments of choice now, as the Senate trial unfolds — but built on a similar hostility to the constitutional order based on separation of powers and the rule of law.  Whether it's disputing the House's "sole Power of Impeachment" (Article I, Section 2, Clause 5), the Senate's "sole Power to try all Impeachments" (Article I, Section 3, Clause 6) or the well-settled meaning of "high Crimes and Misdemeanors" (Article II, Section 4), the absurdity of Trump's constitutional defenses is no less than that of his superficial claim to care about corruption. 

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One little-noticed fact is that this hostility toward what the Constitution actually says is diametrically opposed to the pretense of "originalism," which is the rallying cry of conservative judicial activism, and to a large extent the glue that holds today's GOP together. Amid all the chaos, it's easy to miss how profoundly self-contradictory the Republican legal establishment has become. 

It's not the first time that originalism has been exposed as a sham — but it may well be the most sweeping. A classic example was Antonin Scalia's 2008 Heller decision, in which he simply waved away the portion  of the Second Amendment's text he didn't like — "A well regulated Militia, being necessary to the security of a free State" — made clear the subject was a collective right, when Scalia wanted to find an individual one. 

That example was further compounded when Scalia co-wrote a book to justify his position and Judge Richard Posner wrote a scathing review, "The Incoherence of Antonin Scalia." Posner noted that "the authors' lack of a consistent commitment to textual originalism" was reflected in "fifty-seven 'canons of construction,' or interpretive principles," so varied that they could "generate the outcome that favors Justice Scalia's strongly felt views on such matters as abortion, homosexuality, illegal immigration, states' rights, the death penalty, and guns."  

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Scalia was typical of the way originalism "evolved," as described and criticized in detail by Georgia State law professor Eric Segall in his book, "Originalism as Faith." 

The first wave of originalists was strongly deferential to state and federal lawmakers, Segall explains in his book, absent a showing that laws "clearly violated the framers' original intent." But only a handful of original originalists remain. Modern originalists rely on what they perceive as "the original meaning of the text, not the intentions of the framers," and argue that the meaning "'runs out' in constructional cases," which is where Scalia's 57 canons of constructions — and possibly more — come in. They also stopped believing in deference to lawmakers, effectively giving themselves license to "write laws, rather than interpret them." 

All of this makes the contemporary claim of "originalism" nearly impossible to define, Segall argues. It still works fine as a political brand, however, which may well have been the point all along. 

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We're at a moment in history when a major part of the Republican political establishment is trying to convince the American people that we need a different kind of judge in America: We need an originalist judge as opposed to judges who just make up the law. Now, we all know that that is a false dichotomy. The Supreme Court justices that self-identify as originalists engage in non-originalist decision-making all the time. A lot of the discussion about impeachment is obviously inconsistent with the best original understanding of the Constitution.

Before going further, Segall stopped to make the point that he is not attacking the good-faith arguments of "academic originalists," even where he strongly disagrees with them. His problem is with pundits and Republican senators who ask "the American people to believe that they believe in originalism," even though most of their arguments "are obviously antithetical to originalism." He started with a simple example: 

The idea that the president has to commit a crime to be impeached is obviously inconsistent with the original meaning of the Constitution. I don't read academic originalists making that point, but to the extent the Senate is using Alan Dershowitz to make that point, it is obviously an anti-originalist point. I don't think there's much reasonable disagreement about that.

One way to advance that argument is by misrepresenting the phrase "high Crimes and Misdemeanors" as referring exclusively to violations of criminal law. I suggested to Segall that impeachment is always about abuse of power and that bribery and treason are just particularly egregious forms that that can take. This is what the language of Article II, Section 4 clearly implies, leading with "Treason, Bribery," and then generalizing what they have in common: "or other high Crimes and Misdemeanors."

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Segall agreed, saying that his colleague Clark Cunningham has performed "an originalist, corpus-linguistics analysis of the word 'misdemeanor' in the impeachment clause. [Draft version here.] It's really important that people realize that misdemeanor then didn't mean what it means today. Today, misdemeanor means a traffic ticket or some crime that's not a felony. Back then, it basically meant a bad act, kind of like an abuse of power." 

Segall cautions that he doesn't actually embrace this kind of originalist analysis of constitutional language, but it can be valuable in terms of pointing out the contradictions in an originalist defense of Trump. Cunningham's analysis is called, "Are Trump's Lawyers Misreading the Impeachment Clause?" His point is that the official Trump defense team position is directly opposed to the originalist interpretation of the Constitution, and that virtually every Republican in the political arena has signed on to this hypocrisy. 

Next comes "the idea that impeachment is about overturning the effects of an election," which Segall calls ridiculous. 

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The idea of impeachment is there has to be some way in between elections of holding the president accountable if he engages in abuses of power or crimes, or doesn't execute the laws faithfully. The idea that the whole concept of impeachment is that it would overturn the election is silly, and nothing the founding fathers would have recognized as a legitimate argument.

University of Texas law professor Steve Vladek wrote a New York Times op-ed on this subject last October, which took things even further. He noted the obvious — impeaching a president doesn't overturn an election (it's not as if Hillary Clinton will become president if Trump is removed) — and the not-so-obvious: When the Constitution was written, before passage of the 12th Amendment, impeachment very well could have done that, which the framers clearly found acceptable. (Originally, the runner-up candidate in the Electoral College became vice president.) Again, the original language of the Constitution runs directly counter to contemporary Republican arguments.

Another problem with the purported "originalist" defense of Trump comes with the reliance on executive privilege, which, as Segall noted on Twitter last week, isn't mentioned in the Constitution. Trump, of course, has gone far beyond claims of executive privilege to claims of "absolute immunity," which no court has ever upheld. 

Segall worked at the Department of Justice under George H.W. Bush, where his responsibilities "included fending off or defending against document requests in all kinds of high-profile cases," he told me. "I'm very familiar with executive privilege. I always thought it was supposed to be extremely narrow. If the executive branch is going to assert executive privilege, the head of the agency that's relevant would have to sign a sworn affidavit." 

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The precedent here is the historic Watergate case United States v. Nixon, he noted. "The court in Nixon said very, very clearly that the general interest in confidentiality is not enough to offset the need for relevant evidence in a criminal case." The same rationale would apply to a congressional subpoena, which, Segall has noted on Twitter, is addressed in the Constitution via the Necessary and Proper Clause in Article I, Section 8.

"What President Trump has been doing for the past few months is completely inconsistent with United States v. Nixon," Segall said. It also goes against the central rationale of the Federalist Society, the conservative legal institution supposedly devoted to originalism:

What we're seeing here is separation of powers playing out in very real time, and as matter of checks and balances, the only way to hold the president accountable in situations like this is to have access to the relevant witnesses and documents. And the president is stonewalling on both of those. That should bother people who believe in the separation of powers, and I will remind people that if you look at the Federalist Society website ... their whole mantra is federalism and separation of powers, and [the principle that] judges should interpret not make the law. … The fact that Republicans are letting the president stonewall and not provide this information without any assertion of specific privilege is really problematic.

In our conversation, Segall repeatedly sought to blame this contradiction not on "academic originalists," with whom he has profound and sincere disagreements, but on Republican senators "who are confirming allegedly originalist judges."

I suggested that the problem was larger than that, and speaks to the entire foundation of Republican power. Why was Trump elected in the first place, and why did Republicans who originally opposed him become supporters, even after the "Access Hollywood" tape that so many believed would end his campaign? Wasn't it because he was going to confirm originalist judges?

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Segall responded, "I think the more accurate way of putting that is they elected Trump to protect their guns, overturn Roe and protect religious discrimination." More specifically:

I think when Trump campaigned on appointing justices like Scalia, and occasionally used the word "originalist" to do that, that's just code. Evangelicals don't care whether it's originalism, constitutionalism, whatever. They just want to protect their guns, end abortion and be able to discriminate against gays and lesbians. 

I don't entirely agree. I think identifying with the founders is very important for conservatives' identity narratives, which makes the idea of originalism important to them (if not in any precise, lawyerly sense). All my experience in reporting on Christian nationalism tells me that's true. 

I turned to another lawyer whose work is directly relevant: Andrew Seidel, attorney at the Freedom From Religion Foundation, and author of "The Founding Myth: Why Christian Nationalism Is Un-American" (Salon interview here.) He directed me to his 2018 article "Hypocrisy, God, and the Originalism of Judge Kavanaugh," which contains this passage:

Indeed, originalism has a holier-than-thou flavor to it. It suggests that these judges only look at the Constitution while other judges inject their personal preferences into cases. Originalists are purists, everyone else is overstepping.

There are clear parallels between originalism and conservative Christianity, including purity, textualism, and sanctimony. Perhaps not coincidentally, many originalist judges are highly and conservatively religious. Scalia believed in a literal devil, Thomas is a devout and conservative Catholic, as are Roberts and Alito. Gorsuch is probably a conservative Episcopalian, a close relation to the Catholic Church. The selective reverence for text above common sense, and in some cases common decency, is perhaps the strongest parallel. But so is the element of heresy. Originalist judges tend to treat other judges like jurisprudential heretics.

That surely doesn't explain everything, but it clarifies my point that originalism matters a lot more to conservatives than most folks realize. So the fact that Trump's defense impeachment is an incoherent, anti-originalist disaster may also matter, in ways that may take years to sort out.

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Meanwhile, I had two more pressing questions for Segall. We know that impeachment is intended to be about whether or not the president should be removed. Since no one really thinks that's possible, what purpose should we see in it? Second and even more important, how did we get to this place where our constitutional provisions are so broken?

In response to the first, Segall said, "You can use impeachment as an election device," but not through pure pandering to voters: 

I think it is perfectly legitimate to say, "The president controls the documents, he controls the people, he's not giving us information. So we're going to try to impeach him in good faith, knowing that it's extremely unlikely. And this is part of our attempt to show the American people that he should not be re-elected."

That said, Segall doesn't think Democrats have done a very good job of it. "My training and advocacy tells me that you have to tell a story with a beginning, a middle and an end, and you have to do it fairly quickly and fairly briefly," he said. "I think the Democrats are telling a story that is spread out over many days, and for many people, that is confusing." 

As for the larger question of the state of our constitutional republic, Segall offers a dire analogy:

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Everything in the Constitution is inadequate unless the people buy into it. That's just true about constitutions. The Soviet constitution of the 1950s was amazing. It protected all kinds of freedoms and liberties. But of course it wasn't a real constitution.

There's nothing the Constitution can do in the face of bad-faith manipulation by Trump. It's up to the people, not a piece of paper. 

Which brings us right back to the idea of a "living Constitution" — the great bogeyman of originalism — which holds that a founding document must live, breathe and evolve with the times. As Abraham Lincoln put it, "We must disenthrall ourselves, and then we shall save our country."

 


Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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