Our problems remain epistemological.

Thursday, January 20, 2022

Is It Still Australia? Jolly Swagman’s death is now recorded as COVID19 caused

 



Seth Barrett Tillman, Is It Still Australia? Jolly Swagmans death is now recorded as COVID19 caused, New Reform Club (Jan. 20, 2022, 4:25 AM), <https://reformclub.blogspot.com/2022/01/is-it-still-australia.html>; 






Wednesday, January 19, 2022

Other 12th Amendment Innovations

 

 

In my prior two posts, I have already explained the two major institutional changes brought about by the 12th Amendment—which was a response to the Jefferson-Burr electoral college tie of 1800. These two reforms included: [i] separate ballots for the electors for President and Vice President; and, [ii] changes to how many candidates could be considered by the House in a House contingent election and by the Senate in a Senate contingent election. As explained, the 12th Amendment created new interpretative challenges and new risks, particularly in regard to ties.

 

The 12th Amendment also introduced several other, lesser changes that are worth discussing.

 

Let’s start with text. The original controlling text in Article II (1788) stated:

 

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. (emphasis added)

 

By contrast, Amendment XII (1801) states:

 

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (emphases added)

 

I. Vice Presidential Eligibility. The original Constitution mandates qualifications for Representatives, Senators, and the President. Eg: citizenship, age, and inhabitancy/residence. But it did not expressly mandate that the Vice President have the same qualifications as the President; indeed, it did not expressly mandate any qualifications for the Vice President. Perhaps some in 1787–1788, thought it was implicit that the Vice President had the same qualifications as the President. In any event, the last line of Amendment XII was an effort to resolve this issue. Post 12th Amendment, Vice Presidents, according to the standard view of the meaning of “eligibility,” have the same qualifications as Presidents.

 

II. The Vice President’s Electoral College Majority. Under the original Constitution, the Vice President was the runner up in the electoral college. In other words, the President had to have a majority of the electors appointed, but the Vice President did not. A candidate would prevail for Vice President as long as he had more electoral votes than any other candidate (other than the prevailing candidate for President). By contrast, under Amendment XII, the Vice President also needs an electoral college majority.

 

III. Senate Contingency Elections. Under the original Constitution, the Senate had a limited role in choosing the Vice President. The Senate chose the Vice President if there was a tie for runner up in the electoral college once the President was chosen (by the electors or by the House). Under Amendment XII, the Senate chooses the Vice President in circumstances where no candidate for Vice President carries a majority of the electoral college.

 

But that was not the only change. Amendment XII also changed how Senate contingency elections would be held. Under the original Constitution, the Senate held a contingency election as it would conduct ordinary business. Such rules included:

 

  • A simple majority of the members was a quorum; and,
  • A majority of those voting would carry.

 

Furthermore, under the original Constitution, the Senate must vote by “ballot”—which apparently meant a written, secret ballot.

 

Amendment XII changed these rules for a Senate contingent election. The new rules included:

 

  • A quorum was two-thirds of the members; and,
  • The necessary majority was a majority of the whole number of senators.

 

Interestingly, the “ballot” requirement was dropped from the text. (I have often wondered if this was an actual oversight or mistake by the 12th Amendment’s drafters.) In the 1837 Senate contingent election for Vice President, no secret ballot was used. My own view is that these reforms were not particularly wise. Why? Because, among other reasons, a minority of dissenting senators can absent themselves and obstruct a clear senate majority which would otherwise choose the Vice President. 

 

Of course, Amendment XII was ratified to “fix” the problems associated with the contested election of 1800. It was not intended as a cure all for the electoral college’s many other ailments. These include, for example: 

  • a states House delegation, in a House contingent election for President, with an even number of members where the delegation is equally divided; 
  • appointed electors who do not accept their appointment but are not replaced in a timely manner; 
  • appointed electors who do not vote at all; and, 
  • perhaps, most importantly, appointed electors who do not vote as pledged.

It was and it remains an odd system.

Seth

 

Seth Barrett Tillman, Other 12th Amendment Innovations, New Reform Club (Jan. 19, 2022, 4:10 AM), <https://reformclub.blogspot.com/2022/01/other-12th-amendment-innovations.html>.

See also Seth Barrett Tillman, What the Twelfth Amendment Did and Did Not Do, New Reform Club (Jan. 18, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/what-twelfth-amendment-did-and-did-not.html>; and, 

Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College WorkedNew Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>. 

Tuesday, January 18, 2022

What the Twelfth Amendment Did and Did Not Do

 

 

In response to the Jefferson-Burr election of 1800, the Twelfth Amendment was passed by Congress and then ratified by the States. As explained in my prior post, its major institutional reform was to provide separate ballots for the electors when voting for President and Vice President. In these circumstances, only one candidate could carry a majority of electors for each of the two positions.

 

Twelfth Amendment (1804)

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; [t]he person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (emphases added)

 

The Twelfth Amendment also modified the power of the House and Senate to choose the President and Vice President, respectively, in the event that there was no candidate who carried a majority of the electors appointed. Under the pre-12th Amendment constitution, the House could choose among the top five candidates; after the 12th Amendment, the House was limited to the top three candidates. The problem is that the Constitution does not identity what should happen if there are not three candidates which can be readily identified as the top three. This could happen in a number of ways.

 

Presidential Ties

  • There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 4; or,
  • There can be a 2-way tie for first place (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2; or,
  • There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 3; or,
  • There can be a first place candidate (carrying less than a majority of the electors), with a second place candidate, and an q-way tie for third place, where q is greater than or equal to 2.

 

In each of these scenarios, it could be plausibly argued that the House has a power to choose the President among the top three candidates and among anyone (else) who ties among the top three. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the House is entirely disabled from holding a contingent election for President.

 

What about the Senate? After the 12th Amendment, the Senate is empowered to choose among the top two candidates. Here, the problem is that the Constitution does not identity what should happen if there are not two candidates which can be readily identified as the top two. This could happen in a number of ways.

 

Vice Presidential Ties

  • There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 3; or,
  • There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2.

 

In each of these scenarios, it could be plausibly argued that the Senate has a power to choose the Vice President among the top two candidates and among anyone (else) who ties among the top two. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the Senate is entirely disabled from holding a contingent election for Vice President.

 

Certainly, these problems have been long understood. See William Rawle, A View of the Constitution of the United States of America 55 (Philadelphia, Philip H. Nicklin, 2d ed. 1829) (“[O]ne difficulty not provided for, may possibly some day occur. If more than three of those highest in [electoral] votes for president, or [more] than two of those voted for as vice president should be equal in number of votes, it is not directed how the selection shall be made.”). See generally Robert W. Bennett, Taming the Electoral College (2006); Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 West Virginia L. Rev. 601 (2003). Still these problems remain without any express constitutional or statutory fix, and, likewise, there is no substantial judicial guidance.

Seth

Seth Barrett Tillman, What the Twelfth Amendment Did and Did Not Do, New Reform Club (Jan. 18, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/what-twelfth-amendment-did-and-did-not.html>.

See also Seth Barrett Tillman, Other 12th Amendment InnovationsNew Reform Club (Jan. 19, 2022, 4:10 AM), <https://reformclub.blogspot.com/2022/01/other-12th-amendment-innovations.html>; and,

See also Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College WorkedNew Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>.


 

Monday, January 17, 2022

Alien and Sedition Acts (1798)

 



Strange new, profound respect for: President John Adams, and the old Federalist Party?

Seth Barrett Tillman, Alien and Sedition Acts (1798)New Reform Club (Jan. 17, 2022, 3:34 PM), <https://reformclub.blogspot.com/2022/01/alien-and-section-acts-1798.html>;


Twitter: <https://twitter.com/SethBTillman/status/1483174792735997960>; 

Friday, January 14, 2022

How the Constitution’s Original (or pre-1801) Electoral College Worked

 

Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President. This scenario is what happened in the 1796 presidential election. Incumbent Vice President John Adams, a Federalist, had 71 electoral votes, and 70 electoral votes was a majority of the electors. Former Secretary of State Thomas Jefferson, the runner up, was a Democratic-Republican, had 68 electoral votes, which was less than a majority of the electors. Adams became President, and Thomas Jefferson became Vice President. (There were 138 authorized electors, and, on this occasion, all the authorized electors voted.)

By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked.

If no candidate carried a majority of the electors appointed, then the election was thrown into the House, and the House—in a House contingent election*—could choose any of the top five candidates in the electoral college. Of the remaining four candidates, the one with the most electoral votes (even if not a majority) would become Vice President, unless there was a tie, and then, after the House chose the President, the Senate, in a Senate contingent election, would choose the Vice President between or among those who tied. (Interestingly, the Constitution did not clearly provide for the possibility where no candidate secured an electoral college majority, and six or more candidates tied for the top position.)

If only a single candidate carried a majority of the electors appointed, then that candidate became President, and the runner-up in the electoral college (even though that candidate did not carry a majority) would become Vice President, unless there was a tie for runner up, and then the Senate, in a Senate contingent election, would choose the Vice President between or among all those who tied. This scenario (in respect to the presidency) is what happened in the 1789 presidential election. General George Washington had 69 electoral votes: the vote of every appointed elector. John Adams was the runner up with 34 votes—one vote short of a majority. John Jay, with nine elector votes, trailed in a distant third place. (There were 73 authorized electors—four potential electors did not vote.)

If more than one candidate carried a majority of the electors appointed but one candidate had a greater majority than all the other candidates, then that candidate became President, and the runner-up in the electoral college (who also carried a majority) would become Vice President, unless there was a tie for runner up, and then the Senate, in a Senate contingent election, would choose the Vice President between or among all those who tied. This scenario (in respect to the presidency) is what happened in the 1792 presidential election: incumbent President George Washington had 132 electoral votes: the vote of every appointed elector. On this occasion, however, incumbent Vice President John Adams carried a substantial majority of the electors, but Washington carried a greater majority than Adams. New York’s Governor Clinton came in third, but he did not carry a majority of the electors. (There were 135 authorized electors—three potential electors did not vote.)

If two candidates tied, carrying a majority of electors appointed, and carried more electoral votes than all the other candidates, then that threw the election into the House. The House, in a House contingent election, could choose between the two candidates who tied, and the remaining candidate became Vice President. This actually happened in the Jefferson-Burr election of 1800where both candidates carried 73 electoral votes, and 70 electoral votes was a majority of 138 authorized electors. (Each of the three remaining candidates—including incumbent President John Adamscarried fewer than 70 electoral votes.) This odd, and somewhat unexpected, result led to the Twelfth Amendment, which now provides for separate presidential and vice presidential electoral ballots. (There were 138 authorized electors, and, on this occasion, all the authorized electors voted.)

Finally, there was the possibility that three candidates tied, carrying a majority of electors appointed. In that situation, the House, in a House contingent election, could choose among the three candidates who tied, and then, after the House chose the President, the Senate, in a Senate contingent election, would choose the Vice President between the two remaining candidates. This situation never occurred, and because of post-1800 constitutional amendments, this situation, now, never can occur.

All this is reasonably clear under the Constitution’s original design. Again: under this original design, it was possible: [1] for one, two, or even three candidates to secure a vote from a majority of the electors, and [2] for two or three such candidates to tie having secured a vote from a majority of the electors. 

Seth

*The unusual rules applicable in a House contingent election and in a Senate contingent election will be discussed in another post


Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College Worked, New Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>.


See also Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105(3) West Virginia L. Rev. 601 (2003), <https://ssrn.com/abstract=422700>; and, 

Seth Barrett Tillman, What the Twelfth Amendment Did and Did Not DoNew Reform Club (Jan. 18, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/what-twelfth-amendment-did-and-did-not.html>; and, 

Seth Barrett Tillman, Other 12th Amendment InnovationsNew Reform Club (Jan. 19, 2022, 4:10 AM), <https://reformclub.blogspot.com/2022/01/other-12th-amendment-innovations.html>. 



Sunday, January 09, 2022

Genius on Twitter

 



Seth Barrett Tillman, Genius on Twitter, New Reform Club (Jan. 9, 2022, 10:10 AM), <https://reformclub.blogspot.com/2022/01/genius-on-twitter.html>; 


Wednesday, January 05, 2022

Impeaching Prosecutors Who Fail To Prosecute

        With the election of the Soros-funded prosecutors, and radical policy innovations in prosecutorial discretion, and changed incidence (including increased incidence) in crime, those who (politically) oppose such policies will naturally look to push back against these prosecutors and their policy changes. Some will suggest impeachment as a valid route. I would not support that approach. This is why. 

        My discussion is limited to federal impeachment rules—applicable to federal officeholders—which limit impeachment to “high crimes and misdemeanors.” Some states have impeachment rules akin to the federal model, and such states impeachment rules will apply to their state officeholders. By contrast, under New York law, which lacks any “high crimes and misdemeanors” language regarding impeachment in its state constitution, the scope of the state legislature’s impeachment power may be considerably wider than Congress’ power under the United States Constitution. And, under the California state constitution, certain county and municipal offices are not subject to impeachment by the state legislature. Thus, elected California county prosecutors may be beyond the power of the California state legislature to impeach. 

      Again, impeachment under the federal model is limited to “high crimes and misdemeanors.” Differences of opinion in regard to best policy, and after-the-fact investigations of the real world consequences which flow from such differences of opinion regarding policy, standing alone, cannot meet the “high crimes and misdemeanors” standard. This is particularly true where the alleged wrongdoer, i.e., the officeholder-defendant, announced his policy positions prior to his appointment or election. 

        So, in what circumstances can a prosecutor be impeached under the federal model? There are primarily three situations where impeachment would be appropriate. 

        First, if a statute mandates that a prosecutor prosecute a particular class or type of crime in all circumstances (as opposed to mandating a prosecution regarding a particular or named alleged criminal), and the prosecutor knowingly fails to bring such a case (or if the prosecutor, in his role as prosecutor, intentionally loses or frustrates the case during ongoing judicial proceedings), then the legislature can lawfully impeach the prosecutor under the high crimes and misdemeanors standard. Why? Generally, knowing violations of positive law relating to one’s office meet the high crimes and misdemeanors standard. Notwithstanding such federal statutes, i.e., statutes mandating prosecuting a particular class or type of crime in all circumstances, the Executive Branch has laid claim to the discretion not to bring such prosecutions. This view has not been endorsed by the Supreme Court—or, as far as I know, by any other Article III court. It follows that a member of Congress, in good faith, could support impeaching a prosecutor in such circumstances, notwithstanding the announced position of the Executive Branch. 

        On the other hand, if Congress seeks [1] to mandate a prosecution in regard to a particular or named alleged criminal defendant, or [2] to make some conduct criminal after-the-fact, or [3] to increase the punishment for some conduct after-the-fact, a prosecutor is not duty bound to bring such a prosecution. A prosecution based (entirely) on such a statute would be unconstitutional. In such circumstances, impeaching the prosecutor for violating the statute would be wrong. 

        Furthermore, where Congress’ statute mandating a prosecution is constitutional, the scope of the prosecutor’s duty extends to his job-related conduct and to his concomitant use of government property (i.e., that government property over which he has authority as an officeholder). But it ends there. A federal prosecutor remains a human being and citizen—in other words, a prosecutor has all the First Amendment rights anyone else has. So in bringing a lawful prosecution, the prosecutor must be diligent and zealous. But, on his own time, and when using his own resources, a prosecutor is free to express the view that Congress’ policies—embodied in the statutes supplying the basis for prosecutions his office has brought—are wrong. A prosecutor can even state that the prosecutions his office has launched are a mistake. A prosecutor can express that view in private and public. Indeed, if asked under oath what his view is, the prosecutor is obliged to tell the truth and, in a judicial proceeding, the prosecutor must answer with candor. A prosecutor, in his capacity as a private citizen, can lobby the legislature to repeal a statute making conduct criminaleven where that statute furnishes the basis for an ongoing prosecution he or his office has brought. The expression of such views by a prosecutor is entirely legal; therefore, it cannot be the basis for an impeachment. 

        By way of example: Whether President Clinton’s perjury in regard to sex was impeachable conduct, or not, is a question capable of different reasonable views. By contrast, it was not impeachable conduct for Clinton to express the opinion, even in public, that the Whitewater prosecution was a political hit job. His expressing that viewpoint was core First Amendment protected speech. It does not matter if he was “correct” or not in regard to that view—it does not even matter if he sincerely believed what he way saying. The expression of such a view, even if it in some sense frustrates government policies embodied in federal statutes, is entirely legal, and therefore, it cannot form the basis for an impeachment. 

        Second, mundane statutes provide prosecutors with discretion. But even discretion has limits. A prosecutor has limited resources and can choose priorities. A prosecutor can choose to prosecute a crime in particular circumstances—e.g., where the evidence is particularly strong, or where the societal harm caused by the crime is particularly great. But if a prosecutor establishes a policy for his office, e.g., that his office will never bring a prosecution in regard to a particular class or type of crime, then that policy choice would entirely nullify or suspend a statute.* The President cannot do that, i.e., entirely nullify or suspend a statute, and, a fortiorineither can his prosecutors and other appointees. An elected or appointed officeholders knowingly embracing such a policy choice—i.e., one entirely nullifying or suspending a statute—would meet the high crimes and misdemeanors standard. Why? A prosecutor cannot make legal what the legislature has determined to be a crime. 

        Third, there is always bribery. Bribery is a good basis for bringing an impeachment. But after-the-fact recharacterization of normal democratic political expression and conduct as bribery does not make otherwise legal conduct either illegal or impeachable. Traditionally, bribery means receiving a private benefit, like cash or other property, accepting it secretly, and not paying taxes on itall in exchange for some act or inaction by an officeholder.** If a prosecutor takes $1,000 from a potential defendant, and puts the money in his (i.e., the prosecutor’s) closet in exchange for not prosecuting that defendant, then that is a bribe—it is a crime, and it is impeachable conduct. But if a president runs for office or a prosecutor seeks an appointment based on a platform or programme of limiting the frequency or number of prosecutions for street crime, and then reminds every defendant and their family of his decision not to prosecute or of his decision to seek only limited penalties, and as a result, many such wrongdoers (and their immediate family members, close friends, and other associates) vote for that president or prosecutor, or donate to that presidents or prosecutors campaign committee, or volunteer to pass out that presidents or prosecutor’s campaign literatureall such activity is entirely legal (even if in some sense regrettable). And just as it is legal, such conduct is not impeachable. It is normal democratic politics. The proper response by the opposition is to oppose that candidate at the polls and to remind all the victims, citizens, and voters in the wider polity of what the stakes are in the election. That too is normal democratic politics. If one fails to engage in normal democratic politics, others will fill in that vacuum, and certain consequences are likely (or, at least, more likely) to follow.

        In conclusion, one may ask: If impeachment is off the table, how can one lawfully oppose prosecutors whose policies one opposes? There is normal democratic politics, recall if available, and, of course, the next election. If you cannot wait for the next election, one possibility is to cabin prosecutorial discretion by statute. Of course that solution is based on trusting that the officeholder will comply in good faith.  

        Another possibility is that you can seek to have an office terminated by statute. (Generally, offices created by a constitution cannot be terminated by statute, but offices created by statute*** can be terminated by statute.) Indeed, such a statute only requires a simple majority in each house of the legislature. Federal impeachment, by contrast, requires a House majority and a two-thirds super-majority in the Senate. Of course, the responsibilities currently handled by the officeholder whose position is being terminated will have to be re-assigned. Who, Whom? And that takes us all back to normal democratic politics. 

        Seth 

        Seth Barrett Tillman, Impeaching Prosecutors Who Fail To Prosecute, New Reform Club (Jan. 5, 2022, 6:21 AM), <https://reformclub.blogspot.com/2022/01/impeaching-prosecutors-who-fail-to.html>; 

        * There is a rich historical and legal literature, much of it opposing a particularly strong version of the unitary executive theory, arguing that the President has no regal power to suspend statutes. My own view is that any effort by an Executive Branch officeholder to suspend a statute, where the constitutionality of the statute is not in doubt, is a violation of the officeholders oath of office. Where a subordinate Executive Branch officeholder’s conduct is at issue, then the President’s supervisory duties under the Take Care Clause are implicated. (I am not making any claim here related to what lawful powers a king of England/king of the Scots/king of Great Britain hador purported to havein the late eighteenth century.) 

        ** The core of bribery serving as a basis for impeachment relates to an officeholder’s engaging in an exchange involving his office’s powers (or government property over which he has authority in his role as an officeholder).

    *** Under the Constitution of 1788, an office created by, ratified by, or entirely defeasible by statute is traditionally called an office . . . under the United States.” Terminating an Article III court effectively amounts to a removal from office. Article III mandates good behavior tenure for Article III judges. Therefore, such terminations are likely to give rise to constitutional challenges, which will be heard by other Article III judges and Justices. See, e.g., Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803).