Bill Blum

Here's the case for impeaching Clarence Thomas — the most corrupt Supreme Court Justice

With the confirmation of Amy Coney Barrett, the radical right has completed its long and painstaking project to seize control of the Supreme Court, and to reshape constitutional law for generations to come. Barrett's elevation will give conservatives a 6-3 majority on the court and usher in a crisis of legitimacy for the third branch of government not seen since the 1930s.

The right's triumph has prompted anger and soul-searching among Democrats and progressives, sparking calls to expand the number of Supreme Court justices, echoing Franklin D. Roosevelt's unsuccessful effort to add additional seats to the high tribunal in the midst of the Great Depression.

Enlarging the Supreme Court is entirely within the power of Congress, as the number of justices is not set by the Constitution. The court's composition has, in fact, varied over time, ranging from six justices when the Constitution was ratified to 10 in 1863. The panel was reduced to nine by an act of Congress in 1867 and has remained there since then by statute.

While Democrats should definitely demand court expansion if they retake the White House and the Senate and hold the House, there is at least one additional step they should take to address the court's legitimacy crisis—the impeachment of its most corrupt member—Clarence Thomas.

Thomas should be impeached on charges of perjury for allegedly lying in his annual financial disclosure statements for over a decade and, more fundamentally, for lying in his 1991 confirmation hearing about his disgusting history of sexual harassment.

Although federal judges are appointed for life, their terms are subject to "good behavior." Like all civil officers of the United States, they can be removed, under Article II, Section 4 of the Constitution, "on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

The impeachment process, as we were reminded by the experience of President Trump, consists of two basic steps: First, members of the House of Representatives impeach an official by adopting, on a simple majority vote, one or more articles of impeachment, which read very much like a criminal complaint or a grand jury indictment. Step two proceeds with a trial in the Senate, which has the power to convict on a two-thirds ballot. Ouster from office follows conviction automatically, and cannot be appealed.

Only three presidents—Andrew Johnson, Bill Clinton, and Trump—have been impeached in our history, and all were exonerated in their Senate trials. A fourth, Richard Nixon, resigned in the face of near-certain impeachment and removal for his role in the Watergate scandal.

The impeachment of federal judges, by contrast, has been far more common. To date, 15 federal judges have been impeached, and eight have been convicted by the Senate. Indeed, the only Senate impeachment trials resulting in convictions have involved judges.

Since 1988, three federal judges have been impeached and removed on charges involving perjury. The last judge to be impeached was G. Thomas Porteous Jr. of the Eastern District of Louisiana, a Clinton appointee who was convicted by the Senate and ejected from office in December 2010 for accepting bribes and, among other derelictions, signing false financial declarations under penalty of perjury.

Thomas, if targeted, would become just the second Supreme Court Justice to be impeached. In 1804, the House charged Associate Justice Samuel Chase with eight articles of impeachment for engaging in arbitrary and oppressive conduct and expressing political bias while serving as a trial judge in certain Sedition Act cases during an era when Supreme Court justices also conducted trials. An outspoken Federalist and supporter of John Adams, Chase incurred the ire of Thomas Jefferson and his Republican allies. Chase was acquitted the following year in a Senate trial presided over by Vice President Aaron Burr. (The chief justice of the Supreme Court presides only in presidential impeachment trials.)

As the Senate's website instructs, Chase's exoneration has since been construed to insulate the "judiciary from… congressional attacks based on disapproval of judges' opinions." Guided by the Chase example, an impeachment proceeding against Thomas could not be initiated because of policy differences Democrats may have with him, even though Thomas has demonstrated a flagrant disregard for the constitutional rights of minorities, women and criminal defendants during his tenure on the Supreme Court.

Like Porteous, however, Thomas is vulnerable to perjury allegations.

Under the 1978 Ethics in Government Act, all high-ranking federal officials are required to file yearly financial disclosure statements for themselves and their spouses to safeguard against conflicts of interest. But for 13 years, Thomas failed to report his wife Virginia's earnings on the mandatory annual financial disclosure forms that he signed under penalty of perjury, indicating that his spouse had no non-investment income when in fact she was steadily employed in high-level jobs as a policy analyst and an outspoken conservative activist.

According to Common Cause, Virginia—who is also a lawyer and a one-time aide to former Republican House Majority Leader Dick Armey—received more than $686,000 between 2003 and 2007, working for the Heritage Foundation. In 2011, claiming incredulously that he had misunderstood his reporting responsibilities, Thomas amended his financial disclosures, which can now be examined on the OpenSecrets.org website.

As University of Colorado law professor Paul Campos pointed out in a 2011 Daily Beast article, "The relevant question on the disclosure form isn't complicated: Even if Justice Thomas wasn't a lawyer, he shouldn't have needed to hire one to explain to him that the box marked NONE next to the phrase 'Spouse's Non-Investment Income' should only be checked if his spouse had no non-investment income." In Campos' view, Thomas' omissions were "criminal."

Thomas' alleged perjury in his testimony before Senate Judiciary Committee in 1991 was of a far greater magnitude, centering on his denial under oath that he harassed Anita Hill and other female colleagues while he served as the chair of the Equal Employment Opportunity Commission (EEOC) during the presidencies of Ronald Reagan and George H.W. Bush.

The clash between Hill and Thomas was televised and made for riveting viewing, even more so than the rancorous battle over the 2018 confirmation of Brett Kavanaugh. Thomas was treated with kid gloves by the all-male members of the Judiciary Committee, who sat largely in silence as he denied ever engaging in inappropriate behavior and claimed that he was being "subjected to a 'high-tech lynching.'"

Hill, who is now a professor of social policy and law at Brandeis University, was treated with scorn and contempt by the Judiciary Committee. Some members called her "delusional," suggested she was mentally "unstable" and was a "scorned woman" out for revenge against Thomas for rebuffing her romantic advances.

In addition to assassinating Hill's character, the committee, under the chairmanship of Joe Biden, then the senior Democratic senator from Delaware, declined to call three other female Thomas accusers to testify at the hearing. One of those accusers, writer Angela Wright, remains an outspoken critic of Thomas, and has publicly called for his impeachment. Anita Hill, too, has never wavered, insisting she told the truth.

Unlike criminal trials, impeachment proceedings are not governed by statutes of limitations. In any event, it is never too late to do justice and provide Hill and Thomas' other accusers with the fair hearing they never received.

Even assuming Thomas would avoid conviction in the Senate, his impeachment trial would be nothing like the farce of Trump's proceeding. With Democrats holding a majority in the Senate and Kamala Harris presiding as vice president, documents would be subpoenaed and witnesses, including Thomas, would be called to testify.

The impeachment of Thomas would also offer Biden a full and final opportunity to make amends for the past. Above all, combined with a move to expand the number of seats on the Supreme Court, impeaching Thomas would restore the legitimacy of the judiciary as a bulwark of constitutional rights, and send a message that the nation has had enough of Republican efforts to return the country to the dark days before the New Deal and the civil rights movement.

Before any of that happens, of course, Donald Trump and his GOP enablers must be defeated at the polls.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

Why the 25th Amendment is no match for a madman and his party of sycophants

Should the 25th Amendment be invoked to remove Donald Trump from office? In a press conference on October 9, House Speaker Nancy Pelosi and Congressman Jamie Raskin unveiled legislation based on the amendment that would establish a bipartisan commission that could answer the question and determine if Trump has the capacity to discharge the powers and duties of his office.

The commission would have 16 members, selected in equal numbers by Democratic and Republican congressional leaders, and would include four physicians and four psychiatrists. The remaining members would consist of eight retired statespersons (either former presidents, vice presidents, Cabinet secretaries, or surgeons general). The appointed members would then select a 17th panelist to act as chair of the commission. Once the commission is formed, Congress could pass a concurrent resolution, directing it to conduct an examination of the president.

Formally enrolled as H.R. 8548, the measure is modeled on a nearly identical bill Raskin introduced in 2017. The new legislation has 38 co-sponsors, all liberal Democrats, and has been referred to the House Judiciary Committee for further review.

On the surface, H.R. 8548 makes perfect sense, offering a badly needed mechanism to rescue the nation from a chief executive who is patently unfit to sit behind the Resolute Desk for a single day, much less another four years. Under the terms of the bill, as Pelosi and Raskin stressed, the commission would become a permanent body, and could be summoned into action to deal with future presidents beyond Trump in the event they, too, become incapacitated.

Unfortunately, the legislation doesn't have a prayer of being enacted. It is far too late in the legislative session for any action to be taken.

Even assuming the bill could be rushed to passage in the House, it would inevitably die in the sycophantic GOP-controlled Senate. And even assuming it somehow moved out of the upper chamber at unheard-of warp speed, it would never be signed into law by the very president whose competency has been called into question.

Still, as an expression of constitutional principle and good-government impulses, H.R. 8548 deserves serious debate and consideration.

Long before he was infected with COVID-19, Trump was a sick man unprepared and unable to serve the American people in any position of leadership. Physically, according to some notable independent physicians who have reviewed information released by Trump's doctors, the 74-year-old president suffers from worrisome comorbidities, including heart disease and obesity. Mentally, in the view of some of the country's top mental health professionals who have studied the president's behavior and rhetoric, Trump suffers from malignant narcissism, a toxic mix of narcissistic personality disorder, sociopathy, paranoia and sadism.

Post-COVID, Trump's condition has worsened. Since his release from the Walter Reed National Military Medical Center, where he spent three nights receiving a potent therapeutic cocktail of remdesivir (an antiviral drug), an experimental monoclonal antibody treatment from Regeneron, and dexamethasone (a powerful corticosteroid), the leader of the free world has been in a full febrile meltdown, engaging in unhinged rants and ravings that for the good of the nation cannot be ignored or dismissed as political theater or spirited electioneering.

Among other signs of deterioration, Trump has bragged that he was quickly cured of the virus, called his infection "a blessing from God," and declared that he feels better than he has in 20 years. In addition, without the slightest semblance of logic or coherence, he has flip-flopped erratically on the need for another COVID stimulus package, threatened Iran with annihilation, renewed his criticism of Michigan Governor Gretchen Whitmer in the wake of a foiled right-wing terrorist plot to kidnap her, and lambasted Attorney General Bill Barr for failing to indict Joe Biden and Barack Obama for allegedly spying on his 2016 presidential campaign.

Never known as a beacon of stability, Trump seemingly has entered what Pelosi has dubbed an "altered state." Some observers are asking if the drugs he has taken are in some way responsible.

Although remdesivir and Regeneron's antibody treatment are not known to cause serious side effects, the same cannot be said of dexamethasone. As Newsweek deputy science editor Kashmira Gander explained in a recent column, the steroid has been associated with adverse reactions such as aggression, agitation, anxiety, mood swings, trouble thinking, and in rare instances, grandiose delusions, psychosis, delirium and hallucinations.

Whether what we're witnessing from Trump is truly a form of steroid rage or a combination of the dexamethasone and his baseline proclivities—not to mention his rational fear of criminal prosecution should he lose the election—the president has never been as dangerous as he is now.

But there is no quick legal fix, either under the 25th Amendment or by means of legislation like H.R. 8548, for removing Trump, or any other unfit president who refuses to step down. If anything, removing an incompetent president by means of the 25th Amendment is more difficult than removing a corrupt president by means of impeachment.

Ratified in 1967, the 25th Amendment was crafted in the aftermath of the assassination of John F. Kennedy to clear up ambiguities and fill gaps in the Constitution's original provisions on presidential succession.

The Constitution, as it emerged from the founding convention of 1787, addressed the issue of succession in Article II, Section 1, which stipulates:

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected."

The rule of vice-presidential succession was restated by the 12th Amendment, which dealt primarily with the Electoral College and was ratified in 1804. The 20th Amendment, ratified in 1933, offered more clarification, stating that if the president-elect dies before being sworn into office, the vice president would be sworn in instead.

However, not until 1947, with the passage of the Presidential Succession Act, did the current line of succession take shape, extending from the vice president through the speaker of the House, the president pro tempore of the Senate, the secretary of state, and then to other Cabinet officials.

Still, questions about succession remained—among them, how to define a president's inability to serve, particularly when the inability is mental or emotional in nature. Who gets to make the determination that such an inability exists? And can the president resist efforts to have himself declared unable to serve?

Section 4 of the 25th Amendment addresses these issues. The section consists of two densely worded paragraphs, the first of which provides:

"Whenever the Vice President and a majority of either the principal officers of the executive departments [the Cabinet] or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President." [Emphasis added]

The second and final paragraph of Section 4 instructs, in so many words, that the president can attempt to override a declaration of incapacity by notifying the Senate and House leadership in a counter-declaration that no such inability exists. Thereafter, the vice president, with the support of a majority of the Cabinet, or the "other body" referred to in the first paragraph, can contest the president's override. To resolve the conflict and place the vice president in charge, a two-thirds vote of both houses of Congress is required to confirm that the president is, in fact, "unable to discharge the powers and duties of his office."

The procedures outlined in Section 4 have never been invoked, and it is implausible that they would be used against Trump, even if he drags the nation to the brink of absolute ruin in the time remaining before the election or in the lame-duck session afterward. The amendment simply contains too many moving parts and depends on too many external contingencies to make it a viable option.

First and foremost, only the most cockeyed optimists could believe that Vice President Mike Pence, a corrupt and inveterate liar in his own right, would sign a declaration of incapacity against Trump.

Second, as noted above, it is exceedingly doubtful that the current Congress would seize the initiative and pass legislation creating the "other body" in the form of the commission envisioned by H.R. 8548. And even if such a commission were formed, a declaration of incapacity in the end would still have to be endorsed by the vice president to have any force and effect.

Third, and finally, it would take a two-thirds vote of both the House and Senate to override the president's counter-declaration of fitness.

Check and checkmate.

The only way to rid the American body politic of the pestilence of Donald Trump is to vote against him in overwhelming numbers on November 3, and then, if necessary, to drag him kicking and screaming, tweeting and whimpering, from the White House.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.

This article was produced by the Independent Media Institute.

Here are 5 grim truths about Trump's nightmare Supreme Court

The deed is done. President Donald John Trump has nominated 48-year-old 7th Circuit Court of Appeals Judge Amy Coney Barrett to succeed the late Ruth Bader Ginsburg on the United States Supreme Court. Barring a miracle, Senate Republicans, now reduced to little more than a personality cult ever faithful to their führer, will confirm the nomination.

The consequences of Ginsburg's passing and Barrett's elevation will be horrendous, and felt for generations. Here are five grim observations to help explain the scope of the anticipated nightmare.

1. Barrett Will Drive the Court Sharply to the Right

Every new Supreme Court justice alters the ideological orientation of the institution. Trump's first two appointees to the high tribunal—Neil Gorsuch and Brett Kavanaugh—made the panel more conservative, and transformed Chief Justice John Roberts into the court's most important and frequent swing voter.

Barrett's confirmation will create a solid 6-3 conservative majority. And while Roberts will remain in the political center, the center itself will move decisively to the right.

Barrett was appointed to the federal bench by Trump in 2017. In her brief judicial tenure, she has authored about 100 opinions. In addition, as a professor at Notre Dame Law School, where she taught constitutional law and statutory interpretation until her 7th Circuit appointment, she wrote several influential academic articles and delivered a number of public speeches, creating an extraordinarily large paper trail.

Taken as a whole, Barrett's body of work has been hostile to gun control, critical of Obamacare, antagonistic to employment and sex discrimination claims, and skeptical of consumer rights and economic regulation generally.

In criminal law, she has questioned the constitutionality of the "Miranda rule," which requires arrestees subject to custodial interrogation to be advised of their right to remain silent.

In immigration law, earlier this year, she dissented from a 7th Circuit ruling that struck down the Trump administration's "public charge" policy, which bars noncitizens from receiving a green card if federal authorities believe they are likely to apply for public assistance. (The policy has since been reinstated as a result of a decision issued by a different federal circuit court.)

Most distressing of all is Barrett's outlook on abortion and the continuing viability of Roe v. Wade. While stopping short of declaring that Roe should be overturned, she has expressed support for state laws that impose strict requirements on the operation of abortion clinics, placing her at odds with recent Supreme Court rulings. And in two dissenting votes cast in 2018 and 2019, she endorsed an Indiana law that required fetal remains to be buried or cremated after an abortion.

If you're looking for a historical parallel to measure the potential impact that a Barrett for Ginsburg swap could have, don't look to Gorsuch, who succeeded Antonin Scalia, or Kavanaugh, who replaced Anthony Kennedy. Look instead to Clarence Thomas, who filled the vacancy left by the retirement of the liberal legend Thurgood Marshall in 1991.

Like Thomas, Barrett is a staunch and inflexible proponent of "originalism," the jurisprudential philosophy popularized by Scalia, for whom Barrett clerked from 1998 to 1999 after graduating from Notre Dame Law School, where she ranked first in her class.

In its current iteration, originalism asserts that core legal terms and concepts like "freedom of speech," "due process" and "equal protection" should be interpreted by judges today according to the "original public meaning" they had when they were first inserted in the Constitution or added by subsequent amendments.

Also like Thomas, Barrett has questioned the importance of adhering to past Supreme Court precedent decisions, writing in a 2013 article for the University of Texas Law Review: "I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it." She voiced a similar position in a 2016 article she coauthored for the University of Pennsylvania's Journal of Constitutional Law, acknowledging that adherence to precedent presents "a notoriously difficult problem for originalists."

Even more so than Thomas, Barrett is a religious zealot. She and her husband Jesse, a former federal prosecutor, are reportedly members of People of Praise, a small, tightly knit, patriarchal charismatic Christian sect based in South Bend, Indiana, that professes admiration for "the first Christians who were led by the Holy Spirit to form a community."

In a 2006 law school commencement speech at Notre Dame, Barrett urged graduates to become a "different kind of lawyer," who sees that a "legal career is but a means to an end, and… that end is building the kingdom of God… [I]f you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer."

According to the Washington Post, Barrett "was a paid speaker five times, starting in 2011, at the Blackstone Legal Fellowship, a summer program established to inspire a 'distinctly Christian worldview in every area of law'… to show students 'how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America.'"

In 2015, Barrett signed a letter "from Catholic Women" to the Synod of Bishops, an advisory body to the Pope, that committed the signatories to act "in service to the Church's evangelizing mission."

Trump initially added Barrett to his list of possible Supreme Court nominees in November 2017. She was subsequently passed over, but, according to Axios, the president has been ghoulishly "saving" her to replace Ginsburg. Given Barrett's extreme views, it's easy to understand why her moment has arrived.

2. Barrett's Nomination Is the Culmination of a Decades-Long Republican Push to Remake the Judiciary

Beginning in the early 1970s in reaction to the liberal—and historically atypical—work of the Supreme Court under the leadership of Chief Justice Earl Warren, the right has lobbied to place conservative ideologues on the federal bench.

Within the counterrevolution, no group has been more influential than the Federalist Society. From its founding in 1982 by three law students at Yale and the University of Chicago, the society has grown to include more than 200 chapters at law schools across the United States. From its base in Washington, D.C., today, the society also operates a "lawyers division" with more than 70,000 attorneys enrolled in chapters and "practice groups" in 90 cities.

Barrett is a former Federalist Society member. The other Republican-appointed justices on the court (Kavanaugh, Gorsuch, Thomas, Alito and Chief Justice Roberts) are also either current or former members.

Once confirmed, Barrett will be Trump's third Supreme Court appointment. In the past 50 years, only Richard Nixon, who added four justices, has exceeded that total.

Trump has also been highly successful in placing Federalist Society members on the lower courts. Thus far, the Republican-controlled Senate has confirmed 53 Trump judges to the federal appellate courts, and 161 to the federal district trial courts.

3. Trump Is Banking on Barrett to Support Him in the Event of a Disputed Election

Trump is a man of dubious intellectual rigor. He may or may not fully comprehend—or personally care about—the long-term impact his judicial nominees will have on American law and society.

One thing he does understand, however, is self-interest. As I have argued before, Trump desperately wants to be returned to power after the November election, not only to gratify his bloated ego, but, quite literally, to avoid possible prosecution for an array of federal offenses committed before and after he became president. He knows full well that under Department of Justice policy, sitting presidents cannot be indicted and prosecuted for federal crimes. Remaining in the Oval Office while the statute of limitations on his misdeeds expires is his stay-out-of-jail ticket.

Trump has been working feverishly to undermine public confidence in the election because he is trailing Joe Biden in most polls. Unable to restrain himself, he disclosed on September 23 that he expected the election to "end up in the Supreme Court" in a replay of Bush v. Gore, the infamous judicial coup d'état that handed the 2000 presidential election to George W. Bush. A ninth justice, Trump insists, will be needed to break any 4-4 ties in order to determine the winner of the election should disputes over state voting results reach the Supreme Court.

Enter Barrett, Trump's choice to deliver him a second term by judicial fiat.

4. The Democrats Must Support Structural Reforms to Take Back the Courts

The time has long since expired for the Democrats to meet the Republican judicial counterrevolution with equal resolve. It no longer suffices for Nancy Pelosi and Chuck Schumer and their ilk to appeal to the nonexistent decency of Republicans to adhere to constitutional norms and practices. Trump and the Republicans are interested only in retaining and wielding power.

Structural reforms are essential to respond to Republican tyranny. These include, at a minimum, ending the filibuster rule in the Senate; expanding the number of Supreme Court justices as well as the number of lower-court federal judges; and promoting statehood for Washington, D.C., and Puerto Rico.

All of these changes can be implemented legislatively if the Democrats regain a Senate majority and repeal the filibuster. None requires a constitutional amendment.

As the veteran legal analyst Jeffrey Toobin explained in a recent New Yorker column:

"The number of Justices is not fixed in the Constitution but, rather, established by statute… [T]he Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that's happened, that's a game they should learn to play."

5. The Slide to Minority Rule Continues

The United States has entered an unmistakable era of minority rule. Because of the Electoral College, we have a president who lost the 2016 popular vote by nearly 2.9 million ballots. Because of the constitutional design of the Senate, which allocates two senators to each state regardless of population, we have a Republican Senate majority, even though Democratic candidates for the Senate in 2018 received more than 58 percent of the aggregate popular vote for the upper chamber.

The confirmation of Amy Coney Barrett to the Supreme Court will be yet another inflection point in the slide to minority rule. In a real democracy, it would be unthinkable for an outlier like Barrett to receive a lifetime appointment to the most powerful judicial body in the land.

Yet here we are. And here we will remain unless and until enough ordinary Americans, not just the operatives who run the Democratic Party, rise up and say that they have had enough.

Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.Source: Independent Media InstituteCredit Line: This article was produced by the Independent Media Institute.

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