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U.S. Constitutional Law I(C1 & U.S. Constitutional Law I(C1 & C2) SPRING 2021 PROFESSOR STEPHEN J. SCHNABLY Office: G472 http://osaka.law.miami.edu/~schnably/courses.html Tel.: 305-284-4817 E-mail: [email protected] SUPPLEMENTARY MATERIALS, PART I: TABLE OF CONTENTS H. Res. 24 impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, 117th Cong. (2021-2022). ...........................................................1 Louis Jacobson, Is this a coup? Here’s some history and context to help you decide, PolitiFact, Jan. 6, 2021 ............................................................................................................2 Jacob Schulz, When Extremists Stormed the Capitol and Got Convicted of Seditious Conspiracy, Lawfare, Jan. 20, 2021 ........................................................................................5 Connor O’Brien & Jacqueline Feldscher, Pelosi asks Joint Chiefs about preventing Trump from launching nukes, POLITICO, Jan. 8, 2021 ........................................................7 All 10 Living Former Defense Secretaries, Involving the military in election disputes would cross into dangerous territory, Op-Ed, Washington Post, Jan. 3, 2021 ......................9 Brian C. Kalt, Constitutional Cliffhangers ch. 5 (2012) ................................................................11 Constitution of Canada (excerpts) .................................................................................................38 Constitution of the Republic of South Africa 1996 (excerpts) ......................................................48 Edward Hartnett, A “Uniform and Entire” Constitution; Or, What If Madison Had Won?, 15 CONST. COMM. 251 (1998) ...............................................................................................58 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ...............................................................76 Supreme Court Act, R.S.C., 1985, c. S-26. An Act respecting the Supreme Court of Canada...................................................................................................................................86 Constitution Act, 1867, Canada, § 101 ..........................................................................................87 Joseph M. Lynch, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT 218-27 (1999) ..........................................................................................88 Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), 4 E.H.R.R. 149 (1982) (European Court of Human Rights) ......................................................................................93 George Lardner, Jr., A Test of The Power To Unpardon, WASH. POST, Jan. 14, 2009 .................96 Brian C. Kalt, Once Pardoned, Always Pardoned, WASH. POST, Jan. 26, 2009 ...........................98 The Judiciary Act of 1789, § 25, 1 Stat. 73, 85 ...........................................................................100 The Judiciary Act of 1789, § 25, 1 Stat. 73, 85 (color coded) .....................................................101 Andrew Jackson, Veto Message, July 10, 1832, reprinted in 3 MESSAGES AND PAPERS OF THE PRESIDENTS 1139-54 (1897) .........................................................................................102 Congressional Enactments Timeline 1787-1858 .........................................................................104 Dred Scott v. Sandford: Timeline ................................................................................................108 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) ..............................................................110 Robert Barnes & Anne E. Kornblut, It’s Obama vs. the Supreme Court, Round 2, Over Campaign Finance Ruling, WASH. POST, March 11, 2010.................................................119 Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person’, NPR.org, March 16, 2016 ....................................................................................121 Editorial, The Stolen Supreme Court Seat, N.Y. Times, 12/24/16 ..............................................122 Ilya Shapiro, The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees, The Federalist.com, Oct. 26, 2016 ....................................................................123 Kim Janssen, Posner Says ‘Highly Politicized’ Supreme Court Should Grow to 19 Justices, CHICAGO TRIBUNE, Aug. 1, 2017 .........................................................................125 Burgess Everett & Elana Schor, McConnell’s laser focus on transforming the judiciary, Politico, 10/17/18 ................................................................................................................126 Zach Beauchamp, The Supreme Court’s legitimacy crisis is here, Vox, Oct. 6, 2018 ................127 Ian Samuel, Kavanaugh will be on the US supreme court for life. Here’s how we fight back, The Guardian, Oct. 9, 2018 .......................................................................................131 David B. Rivkin Jr. and Lee A. Casey, Democrats Abandon the Constitution, Wall St. J., Oct. 15, 2018 .......................................................................................................................133 Gabby Orr, ‘We will not be betrayed again’: Trump’s SCOTUS list hits a new roadblock, Politico, July 27, 2020 ........................................................................................................135 Allen v. Wright, 468 U.S. 737 (1984)..........................................................................................138 The War Powers Resolution, 50 U.S.C. §§ 1541-1548 ...............................................................143 To prohibit the conduct of a first-use nuclear strike absent a declaration of war by Congress, H. R. 669, 115th Cong., 1st Sess........................................................................148 Charlie Savage, Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes, N.Y. TIMES, July 22, 2017 ..................................................................................................150 H. Res. 24 impeaching Donald John Trump, President of the United States, for high crimes and mis- demeanors, 117th Cong. (2021-2022). Resolved, the Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate: Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, Presi- dent of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors. ARTICLE I: INCITEMENT OF INSURRECTION The Constitution provides that the House of Representatives "shall have the sole Power of Impeach- ment" and that the President "shall be removed from Office on Impeachment, for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has "engaged in insurrection or rebellion against" the United States from "hold[ing] and office ... under the United States.' In his conduct while President of the United States — and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, provide, protect, and defend the Constitution of the United States and in violation of his constitutional duty to take care that the laws be faithfully executed — Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Govern- ment of the United States, in that: On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preced- ing the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, D.C. There, he reiterated false claims that "we won this election, and we won it by a landslide." He also willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol, such as: "if you don't fight like hell you're not going to have a country anymore." Thus incited by President Trump, members of the crowd he had ad- dressed, in an attempt to, among other objectives, interfere with the Joint Session's solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capi- tol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive and seditious acts. President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on
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