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John Mikhail
Professor and Associate Dean
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Carissa Byrne Hessick 5 h
Very substantive thread here on intent-based legal analysis, impeachment, and Senator Mike Lee's recent announcement about why he voted not to hear from witnesses in the impeachment trial.
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John Mikhail proslijedio/la je tweet
John Mikhail 9 h
With all due respect to , his appeal to a summary judgment rule to defend voting against a full trial is inaccurate & misleading. There is a genuine dispute of material fact in this case: the specific purpose for which foreign aid was delayed and a WH meeting denied.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
Otherwise, their facile appeal to a summary judgment rule (“no genuine dispute of material fact”) to justify their refusal to permit a full trial on the merits w/ witnesses will likely become a stain on their reputations & a sad legacy of evasion, inconsistency, and hypocrisy.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
…and to explain to the American public - on the basis of that full, accurate & "undisputed" description of the president’s acts & purposes - why they do not constitute any abuse of power or other violation of his constitutional oath & duty to faithfully execute the laws.
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John Mikhail 9 h
Odgovor korisniku/ci @SenMikeLee
Returning to , if he & his GOP colleagues truly believe there is no genuine dispute of material fact in this case, they should be willing to approve a series of special verdicts about “what the president did” that include, rather than evade, its mental state elements…
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
Pick up almost any conservative writing on the role of intentions and one can find broad statements of principle that apply equally well to DJT’s impeachment trial & make clear what a farce the GOP has permitted it to become by blocking the best evidence of DJT’s actual purposes.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
Finally, it's worth noting that the greatest champions of intent-based legal analysis in recent decades have been conservative jurists like W. Rehnquist, J. Finnis & N. Gorsuch. Remember The Rights and Wrongs of Abortion? Vacco v. Quill? Masterpiece Cakeshop? The Bybee Memo?
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
The claim that SJ is warranted in this trial b/c there are no genuine issues of material fact & direct evidence of DJT’s purposes is unnecessary thus comes with especially bad grace from those who regularly apply different principles of materiality & evidence in other contexts.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
…violations of the Equal Protection Clause, for example, their message to plaintiffs has been: your heavy burden is to prove discriminatory purpose (disparate treatment), not just discriminatory effects (disparate impact). Go back & find more evidence of a bad purpose.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
Another element of hypocrisy here is that, for decades, the GOP & many GOP-appointed Justices have insisted that a sharp distinction between intended & foreseen effects can be used to resolve important constitutional questions. In the case of racial minorities claiming....
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
…and the Senate should consider all relevant and probative evidence bearing on that issue. Of course, that would mean taking into account the testimony of any direct witnesses to the alleged conduct that could speak to DJT’s purposes, such as Mr. Bolton & Mr. Mulvaney.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
The first & most obvious problem w/ this claim is that DJT’s lawyers have insisted that only crimes or crime-like behavior are impeachable. Granting that premise for the sake of argument, it follows that a trial should be focused on the mens rea elements of the alleged conduct...
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John Mikhail 9 h
Odgovor korisniku/ci @SenMikeLee
To amplify, & other GOP Senators are being evasive & inconsistent when they describe the president’s conduct in purely behaviorist or consequentialist terms, yet claim there are no genuine issues of material fact that require witnesses or other evidence to resolve.
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John Mikhail 9 h
Odgovor korisniku/ci @_John_Mikhail
… that “no new witness would change or contradict” that description. The last claim is true, but irrelevant, because what a full trial would do is fill in the missing mental state element of Lee’s incomplete action description. That element is clearly both material & disputed.
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John Mikhail 9 h
Odgovor korisniku/ci @SenMikeLee
Like many of his defenders, describes DJT’s actions the way a behaviorist would. The president’s goals, purposes, or intentions are left out of the description. Lee then asks us to accept his intent-free description of the actions as “what happened” & claims …
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John Mikhail 9 h
With all due respect to , his appeal to a summary judgment rule to defend voting against a full trial is inaccurate & misleading. There is a genuine dispute of material fact in this case: the specific purpose for which foreign aid was delayed and a WH meeting denied.
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Alexandre Afonso 16 h
Quiz: In the 1820s, which country supported Greek independence from the Ottoman Empire by sending 100 volunteers to Greece (who were captured by pirates on the way) and twenty-five tons of coffee beans, with instructions to sell them and buy arms and ammunitions?
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Adam Rothman 1. velj
Many of you follow me for my class on the history of slavery, . You will really enjoy the History of American podcast hosted by & . I had such a great time talking with them about emancipation in Episode 9.
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Frank Bowman 31. sij
Read the scholars letter rebutting constitutional arguments made by Trump lawyers. Many more signatories have joined since this version posted in several hrs ago.
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Keith Boykin 31. sij
Trump imposes new travel ban restrictions on citizens from Nige­ria, Sudan, Tanzania, Er­itrea, Myan­mar and Kyr­gyzs­tan.
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