Constitutional Law

William C. Banks in Ms.: Voting in a Time of Pandemic

Voting in a Time of Pandemic: The November Election Must Go on as Scheduled

by Stephen Dycus & William C. Banks

The process is entirely out of the president’s hands.

(Ms. | March 27, 2020) With polls showing Trump trailing former Vice President Joe Biden—his likely Democratic opponent in the November election—it is widely rumored that the president might seek ways to postpone the election in order to remain in office.

Such a move would be blatantly illegal: It would place the government of the United States in the hands of one man, abridge the cherished right of those in the U.S. to choose their leaders, and threaten democracy itself.

The Power to Control Elections Lies with States and Congress

The Constitution entrusts the timing and conduct of federal elections entirely to Congress and the states. According to Article I, states prescribe the times, places and manner of selecting senators and representatives—although Congress may change those rules.

The president has no role to play in their election.

Election of the president is a bit more complicated, but here again the Constitution is clear. Under Article II, the President’s term is limited to four years—although she may be reelected for a second four-year term.

The same article gives Congress the job of determining a time for “chusing the Electors,” who are appointed by each respective state, and whose role in selecting the president is spelled out in detail in the 12th Amendment.

The process is entirely out of the president’s hands.

The 20th Amendment to the Constitution says the President’s term ends on January 20th, and the term of her successor “shall then begin.” It also says that if a president has not been chosen by that date, and no vice president has qualified to serve instead, Congress may either designate someone to act as president or may prescribe a new procedure for selecting one.

Invoking this provision, the Presidential Succession Act of 1947 states that if no one has qualified to serve as President, the Speaker of the House—or others in a specified line of succession—shall serve instead …

Voting in a Time of Pandemic: The November Election Must Go on as Scheduled

William C. Banks Discusses Emergency Powers on ABA National Security Podcast

Emergency Powers & COVID-19 with William Banks

William Banks is the Chair of the ABA Standing Committee on Law and National Security Advisory Committee and a Distinguished Professor and Emeritus Professor at the Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs, and the author of several constitutional law textbooks.

This episode references:

William C. Banks Helps Fact Check Martial Law Rumors

Martial Law Isn’t ‘Imminent’

(FactCheck.org | March 25, 2020) President Donald Trump mobilized the National Guard on March 22 in Washington, California and New York — three states that have been hit hard by COVID-19 — to assist with everything from distribution of food to set-up of medical tents.

The following day, Defense Secretary Mark Esper clarified: “To be clear, this is not a move toward martial law, as some have erroneously claimed.”

Esper was responding to persistent online rumors that martial law is either currently in place or very near.

Generally, martial law is military authority substituted for civil government during periods of unrest. It’s a murky concept that hasn’t been defined in American law — as we’ll explain later.

As for the rumors hyping the idea that military rule is looming, the Facebook page for “Alternative Media Television” recently warned its more than 145,000 followers: “STORM IS COMING TO AMERICA!!!! MARTIAL LAW NEXT 24 HOURS!!!!!!”

That post linked to Alternative Media Television’s online store, which sells “emergency survival” gear and “emergency preparedness” food supplies.

Alex Jones, the conspiracy theorist behind the website Infowars.com, also has been pumping out misinformation on the issue while selling his own survivalist supplies, including face masks.

“We are already under overlying fields, crisscrossing fields, of martial law,” Jones said in one recent video …

… Basically, martial law is the temporary replacement of civil government by the military during a period of unrest, explained David Glazier, a professor at Loyola Law School and former U.S. Navy officer.

It has rarely been used in the U.S., said William Banks, professor of law at Syracuse University. The last time was in Hawaii, when martial law was instituted following the attack on Pearl Harbor …

Read the full article.

 

William C. Banks Discusses Trump Impeachment Trial on KPCC

Impeachment Latest: Dems Prepare To Make Opening Arguments After Senate Sets Trial Rules

Listen to the segment

(KPCC AirTalk | Jan. 22, 2020) The U.S. Senate plunged into President Donald Trump’s impeachment trial with Republicans abruptly abandoning plans to cram opening arguments into two days but solidly rejecting for now Democratic demands for more witnesses to expose what they deem Trump’s “trifecta” of offenses.

Trump himself said Wednesday he wants top aides to testify, but qualified that by suggesting there were “national security” concerns to allowing their testimony. He appeared to break with Republicans efforts to block Democratic motions to immediately call witnesses and subpoena documents. Instead, Trump said he’d like to see aides, including former national security adviser John Bolton, Secretary of State Mike Pompeo, and acting chief of staff Mick Mulvaney, testify as witnesses. Trump said he’d leave the “national security” concerns about allowing their testimony to the Senate.

Tuesday’s daylong session started with the setback for Republican Senate leader Mitch McConnell and the president’s legal team, but it ended near 2 a.m. Wednesday with Republicans easily approving the rest of the trial rules largely on their terms. With the rules settled, the trial is now on a fast-track. At issue is whether Trump should be removed from office for abuse of power stemming from his pressure on Ukraine to investigate Democratic rival Joe Biden and Biden’s son Hunter as Trump was withhold aid to the country, and for obstructing Congress’ ensuing probe.

Today on AirTalk, we get the latest on impeachment as opening arguments are set to begin.

GUESTS:

  • Ron Elving, senior editor and correspondent on the Washington Desk for NPR News.
  • John Malcolm, vice president of the Institute for Constitutional Government and director of the Center for Legal and Judicial Studies at The Heritage Foundation, a conservative think tank based in Washington, D.C.
  • William C. Banks, professor emeritus of law at Syracuse University, he’s the co-author of “Constitutional Law: Structure and Rights in Our Federal System,” (Carolina Academic Press, 2018)

William C. Banks Comments to China Daily on Impeachment, 2020 Elections

Impeachment Seen as Impacting 2020 Election

(China Daily | Dec. 11, 2019) As the US House Democrats sought on Monday to bolster the case for impeaching President Donald Trump, analysts said the move would have political repercussions on the campaign trail even if the result is “impeached but not removed”.

Trump “constitutes a continuing threat to the integrity of our elections and to our democratic system of government,” Jerry Nadler, chairman of the House Judiciary Committee, said after the panel heard from House Intelligence Committee staff members on their investigation of Trump on Monday.

“Such conduct is clearly impeachable. This committee will proceed accordingly,” said Nadler, a New York Democrat …

… William C. Banks, a Syracuse University College of Law professor, said the scenario that Trump is subjected to a trial and ultimately acquitted may help him politically, but “only time will tell how voters react”.

“For those who believe in the rule of law and the importance of constitutional norms, his impeachment is nonetheless important because it upholds and reinforces the importance of those norms,” Banks said.

Banks, who co-authored National Security Law and the Power of the Purse, a 1994 book about tensions between the executive and legislative branches over security and spending, said there will undoubtedly be an impact on the 2020 campaign.

“Biden is of course central to the Ukraine scandal, and his testimony will be more damning of the president than harmful to Biden,” Banks said.
Banks also said it is impossible to know the immediate repercussions of the impeachment for Democrats in next November’s election.

“Trump continues to have a constant 40 percent approval rating, but given the electoral system, he could win again with less than a majority of votes. It’s too soon to tell,” Banks said …

Read the full article.

 

William C. Banks Reviews Impeachment Day 2 with KPCC

Impeachment Hearing: Day Two with Marie Yovanovitch

(KPCC Los Angeles | Nov. 15, 2019) On the second day of impeachment hearings, former ambassador to Ukraine Marie Yovanovitch testified before the House Intelligence Committee.

Yovanovitch was removed from her post in May by what she described as a “smear campaign” by the Trump Administration and the former Ukrainian Prosecutor General Yurij Lutsenko. Yovanovitch had clashed with Lutsenko over alleged corruption in his department, say Ukrainian officials.

Yovanovitch previously testified to Democrats behind closed doors last month that she was warned to “watch her back,” before being ousted as ambassador. She said that she was the victim of a “campaign of disinformation” by Trump’s allies working through “unofficial back channels.” She attributes her loss of position to her anti-corruption stance. Without sustaining any criticism from the State Department itself, Yovanovitch was removed from office in May.

Republican House members largerly wrote off the relevance of Yovanovitch’s testimony. California Representative Devin Nunes said she “is not a material fact witness.” But House Intelligence Committee Chairman Adam Schiff asserted that by removing Yovanovitch, Trump and his allies had “set the stage for an irregular channel” of foreign policy communication with Ukraine led by Rudy Giuliani to pressure Zelensky to investigate Hunter Biden and the Democratic Party …

Listen to the segment.

 

Impeachment & Public Opinion: William C. Banks Speaks to China Daily

Public opinion could be telling as impeachment proceedings unfold

(China Daily | Nov. 2, 2019) The impeachment proceedings against US President Donald Trump could shape and sway public opinion and impact the 2020 presidential campaign, analysts said.

The House of Representatives, in a 232-196, mostly party-line vote on Thursday, approved rules for the next, more public, stage in the Democratic-led impeachment inquiry into Trump’s attempt to have Ukraine investigate former vice-president Joe Biden and his son Hunter.

Over the past five weeks, the probe has primarily been shaped by closed-door testimony from several officials who have raised questions about whether Trump and his inner circle withheld nearly $400 million in security aid for Ukraine in order to pressure Kiev to investigate Trump’s political rivals, thehill.com reported.

The probe focuses on a July 25 telephone call in which Trump asked his Ukrainian counterpart, Volodymr Zelenskiy, to investigate Joe Biden, a 2020 candidate for the Democratic presidential nomination, and his son Hunter, who had served as a director for Ukrainian energy company Burisma Holdings …

… William C. Banks, co-author of National Security Law and the Power of the Purse, a 1994 book about tensions between the executive and legislative branches over security and spending, said that to win a second term, Trump would need the impeachment effort to fail and backfire, showing the Democrats as interested only in partisan victory and not the rule of law.

“If the public impeachment process builds the Ukraine abuse of office case clearly, so that average Americans can see what the president did, it should lead to impeachment and a trial in the Senate,” said Banks, a Syracuse University College of Law professor.

“From there on, everything depends on events that have yet to occur,” he said …

Read the full article.

 

Professor William C. Banks Helps CNN Fact Check “Unconstitutional” Impeachment Claims

(CNN | Oct. 31, 2019) Moments after the House passed a resolution establishing procedures for the next phase of the impeachment inquiry into President Donald Trump, the White House condemned the vote.

In a statement, White House press secretary Stephanie Grisham said that the resolution “fails to provide any due process whatsoever to the Administration,” calling it “unconstitutional.”

Trump echoed his administration’s complaints in an interview with British radio station LBC that aired soon after the vote. Referring to the resolution he said, “They gave us absolutely no rights” …

… William Banks, a law professor at Syracuse University, told CNN that “some will see the new procedures as providing due process, and there is no harm in that view. As such ‘due process’ is a synonym for ‘fairness.'”

“There is nothing in the Constitution or any law, nor any rules of the House, that prescribes a particular procedure for impeachment proceedings,” Banks added.
The Constitution notes only the basis for impeachment and that the House “shall have the sole power of impeachment” while the Senate “shall have the sole power to try all impeachments.”

“The House resolution is not in any way ‘unconstitutional,'” Banks said. “The resolution provides more than is required.”

Read the full article.

 

William C. Banks Helps CNN Fact-Check Trump vs. Schiff

Fact-checking Trump’s shifting narrative on Adam Schiff

(CNN | Oct. 21, 2019) Over the last two years, the chairman of the House Intelligence Committee, Democratic Rep. Adam Schiff, has been a constant target of President Donald Trump’s ire.

Recently, Trump has focused almost entirely on a statement Schiff made to the committee last month in which he gave his own interpretation of Trump’s phone call with Ukrainian President Volodymyr Zelensky. Schiff’s controversial statement included what he said was “the essence” of what the President communicated to Zelensky, rather than the “exact transcribed version of the call.”

Since then, the President’s characterization of Schiff — while always negative — has shifted dramatically, with Trump referring to Schiff’s comments as illegal, criminal or treasonous at least 8 times. He has even threatened to sue Schiff …

Schiff’s immunity

Recently, Trump has renewed his calls for Schiff to be punished, deploying a new tactic. The day of Schiff’s statement to Congress, he shared a clip of it on Twitter. Although the Constitution includes a specific provision that allows members of Congress to speak freely during official meetings, Trump claims Twitter is not protected under the clause and as such Schiff should be prosecuted for fraud.

On October 18, Trump said: “I understand he has immunity, but he doesn’t have immunity when he puts it on his Twitter, which he did.”

Facts First: The constitutional provision that gives Schiff immunity from prosecution over his comments in Congress also gives him immunity over his tweet of a video of those comments, experts say.

Per a Congressional Research Service report, the Constitution’s Speech or Debate Clause has also been interpreted “to include all ‘legislative acts’ undertaken by Members or their aides.”
Trump is partially right; Were Schiff to have tweeted his rendition of the call or other inaccurate characterizations of the President outside of the context of his congressional duties, it would not be considered a protected legislative act. However, because the tweet was of Schiff’s speech to Congress, Schiff remains immune from prosecution over it.

“Rep. Schiff is protected by the Speech or Debate Clause of the Constitution from being questioned ‘in any other place,'” said William Banks, a law professor at Syracuse University. “The protection clearly extends to the offending Tweets.”

Read the whole article.

 

William C. Banks Reflects on Trump Impeachment for China Daily

Democrats start Trump impeachment probe

(China Daily | Sept. 26, 2019) Republican president calls US House’s drive ‘positive’, yet tweets with fury.

“If the allegations are true, the abuse of power is significant.”

Democrats made their move against US President Donald Trump on Tuesday, as Speaker Nancy Pelosi announced that the House of Representatives will open an impeachment inquiry over a phone call Trump had with Ukraine’s president in which former vice-president Joe Biden and his son were reportedly discussed.

“The actions taken to date by the president have seriously violated the Constitution,” Pelosi said after meeting with House Democrats at the Capitol. “The president must be held accountable. No one is above the law.”

The phone conversation was reported to be included in a whistleblower complaint that the Trump administration has not turned over to Congress, although a news report on Tuesday said the White House would release it.

The impeachment probe will center on whether Trump sought help from a foreign government in his bid for reelection next year. Biden is now a leading contender for the Democratic presidential nomination …

… William C. Banks, a law professor at New York’s Syracuse University, told China Daily: “If the allegations are true, the abuse of power is significant, and many members of Congress will be motivated to conduct impeachment proceedings.” He is the co-author of a 1994 book about tensions between the executive and legislative branches, National Security Law and the Power of the Purse.

As for the impact on the 2020 election, Banks said: “It’s too early to say. It could be the beginning of the end for President Trump, or the proceedings could backfire and propel Trump to reelection” …

Read the full article.