Impeachment...Remind Me How This Works

We wrote this article expressly not to be political in any way, but to clearly put out there what the Constitution actually says – not what people on social media or TV claim it says. So when you hear people say one thing or another, YOU can form your own opinion!

So we are back here for round two of Impeaching President Trump! For those who need a refresher, let us get down to the basics of impeachment.

Impeachment is a way for the legislative branch to keep tabs on the executive branch. In order to be impeached, the House of Representatives must charge and try a sitting federal governmental official for “treason, Bribery, or other high Crimes and Misdemeanors.” If the impeachment process is successful, under Article I, section 3, clause 7 of the Constitution, the judgements are limited to the removal of office and disqualification to hold future office.  That’s it!

There is a Two-step Impeachment Process:

Step 1 – First up - The House! Under Article 1 § 2 of the Constitution, The House of Representatives "shall have the sole Power of Impeachment,” meaning the House requires a majority vote to prepare the “articles of impeachment” and determine whether or not to charge the official.

Step 2 – Senators are up next! After the House of Representatives charge the official, then the Senators consider the evidence, hear witnesses, and need a two-thirds vote to either acquit or convict an impeached official under Article 1 §3.

On January 11th, House democrats introduced an article of impeachment claiming that President Trump “threatened the integrity of the democratic system, interfered with the peaceful transition of power and imperiled a coequal branch of government,” based on last week’s riot at the Capitol. The articles charge President Trump with “incitement of insurrection.” This is a day by day process now, and as of this writing, Wednesday, January 13th the House will meet and confer about whether to prepare the articles of impeachment.

We know everything takes time. As of this moment, the Senate is not in session and are not expected to reconvene until January 19, 2021. Thus, the earliest the Senate trial could begin is January 19th, a day before President Elect Biden’s Inauguration. On the air, it’s been stated that they will actually meet an hour after Joe Biden is inaugurated.

As President Trump is about to leave in a matter of days and President Elect Biden is about to take office, the question is – Can Congress go forward to remove a President after he has left office? The Constitution is vague and does not expressly forbid this, BUT THIS HAS NEVER BEEN DONE BEFORE!

There are arguments on both sides. One may argue that the Constitution was purposely vague as to addressing when an impeachment trial may take place and thus it could take place after the sitting president’s term is over. On the other hand, one may argue that once a sitting president leaves office, they return back to private citizenship and are no longer subject to impeachment. Legal scholars are very divided. The sole language in the Constitution that goes to this is found in Article 2, Section 4:

SECTION 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

It really seems like the aim here was about removing from office, doesn’t it?  What strikes us the most is how The Constitution is pretty vague on this. As attorneys, we actually see this all the time, laws that are just unclear or that fail to address things that are obviously likely issues. What happens next?  Often the Courts get involved!  In fact, there are some similar cases out there involving other officials, but to us -  the facts in each are so different that they don’t give much insight. 

So keep your eyes open! 

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

What is the First Amendment Anyway?

These days we all keep hearing about First Amendment Rights. We think we know what the term means – freedom to speak what we think – but is there more to it? There is!  We exercise our First Amendment rights by speaking freely, expressing ourselves through art, writing, protesting, dressing, attending religious services, or maybe even erotic dancing! While we do live in the land of the free, our First Amendment freedoms do have their limitations, such as we all have seen during this pandemic.

What do these constitutional freedoms really mean? Essentially, the Government has to be careful when it comes to certain things.  It cannot advance nor prohibit religion and it cannot limit the free exercise of religion. It cannot hinder the freedom of speech, the press, or assembly (think peaceful protests). Lastly, the Government cannot hinder the right to petition the Government to remedy injustices.

Just this past weekend, I took the tram to Franklin D. Roosevelt’s Four Freedoms State Park in Roosevelt Island where engraved stones spell out these freedoms, the very basic fundamentals of our democracy.

Covid-19 has made it very real for all of us, that obviously the Government does sometimes get to curtail these freedoms.  Why? The simple answer is the Government can enact measures to protect the public when there is a Public Health Emergency. Covid-19, under the Public Health Services Act, is a disease that meets the definition of “severe acute respiratory syndromes” and therefore,  the Government is authorized to do things like mandatory quarantines, short term school closings, non-essential business closures, stay-at-home orders, limitations on public gatherings, and penalties for not wearing a mask or abiding by social distancing orders.

Yet, the Government isn’t allowed to do just whatever restrictions they feel like. This is where the 14th Amendment kicks in! The 14th Amendment includes a provision that the Government must not deprive us of life, liberty, and property without due process of the law. There are actually two parts to think about – the Due Process Clause and the Equal Protection Clause.  Due process means you get to have a notice and hearing before rights are taken away.  Equal protection means you must treat people – or groups of people – equally and cannot make laws that discriminate unfairly against one group versus another.  In fact, depending on what the restriction is aimed at, the Government’s power to restrict is subject to a higher burden in certain cases. Race is subject to one of the highest standards – the Government cannot discriminate on the basis of race unless it can prove its action is “necessary” for a compelling interest.” Yet discriminating based upon age?  That gets a lower standard – the Government just needs a legitimate interest that the action is rationally related to.

What does this have to do with what we are talking about?  Well, when courts look at cases where people are claiming Covid-19 restrictions go too far, they will subject the restriction or other action to this type of review.  Let’s look at some examples:

 1.     NYC Recent School Closures.

Right before Thanksgiving In New York City, the media was abuzz with Mayor De Blasio’s closure of the schools. In a major policy reversal, due to widespread criticism (and moms on the steps of City Hall),  the policy was reversed! Starting on December 7th, elementary schools will reopen and students with disabilities can return on December 10th. Furthermore, Mayor De Blasio abandoned the 3% test positivity threshold and reduced the hybrid learning system in public schools.  

 2.     Florida Strip Club Closure reversed based upon Freedom of Expression.

In Florida, a Miami-Dade judge made it illegal for the Mayor to impose a curfew preventing a well-known strip club, Tootsies, from operating all night but did not impose the same restrictions on bars and restaurants. More entertainingly, the suit noted how erotic dancing is a form of freedom of speech and said the curfew violated the patrons’ rights “to enjoy the exotic dance entertainment for which Tootsies is famous.”

 3.     Texas suspension of a student for posting evidence of school non-compliance with CDC Guidelines reversed.

In Dallas, a public school classmate was punished for practicing her freedom of speech when she was improperly suspended for posting an image of a maskless classmate and a video of school dismissal procedures that clearly weren’t socially distanced. The suspension was reversed based on the Tinker v. Des Moines decision which held that school officials could not censor students’ freedom of expression unless they could reasonably determine that the expression could cause substantial disruption of school activities. In this particular case, a principal was able to impose reasonable restrictions as to the use of social media during school hours, but not control what the students can post during off-school hours.

No matter what one’s political beliefs are, many are questioning the “rules” we have been living by and the many that often seem to be at odds with each other. From being able to protest in large numbers on the streets, while not being able to attend a gathering of more than 10 people during the Thanksgiving Holiday, to being able to attend malls for Black Friday sales but limiting religious organizations to 25 people per room, to allowing restaurants and bars to operate while closing NYC public schools – it all seems sort of arbitrary at best or purposely selective at worst. None of this makes sense and the simple truth appears to be, that many government officials will just keep doing what they want – or honestly think is in the best interest of their constituents – until they realize the public outcry at their decisions or someone takes the matter to the Courts for review!

This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.

WILL you be together for Thanksgiving?

Wow!  What a crazy year! The holidays are coming, but boy are they different this year!  Covid looms all around us and many of us are missing out on the big family gatherings; some of us limiting things to immediate family and others forgoing it all. The thing to remember is simply that it’s all about family, isn’t it?

So as lawyers when we think about family, often the first thing we think about are wills. We lawyers are often pretty clinical about things; we have to be.  Wills are often pretty touchy subjects, but it’s just one of those things that you have to put sensitivities aside and think about and getting one.

Covid truly makes us realize how fragile life is; but in truth it didn’t take Covid to make it so. We always say that our lives – and anyone’s -  can change on a dime. So we are not saying that now is the time to get all somber, jump down your parents throats or skip all festivities and do an accounting of your assets. We’re saying the holidays are a good time to talk to your loved ones, to think about your own desires and to take stock of what you have.

Many people don’t have wills. Each state has laws which control where your stuff goes if you pass away without having one.  The laws may be fine with you.  The more assets you have, obviously the more crucial it is to have a will. Yet, almost everyone has something they hold dear, that they would like to specifically say who gets it.

There’s also the issue of cost. Many don’t realize that if you have very few assets, your will is simple and thus not costly at all. Also, there are things that are in addition to a will – maybe you need a trust, perhaps a power of attorney (so that if something happens to you where you are incapacitated, someone else can sign on your behalf), or perhaps Covid has made you think of the medical decision making documents that you might need if you are not in a position to make medical decisions yourself.

So start the basic process of discussion.  Let’s start with your parents.

1. Do they have any of these documents?  If so, where are they kept?  What is their attorney’s name and phone number. Who is the Executor (the person in charge of doing the duties under a will) or Trustee (person in charge under a trust)?

2. Do they have a list of assets with details (like account numbers)?

3. Do they have online banking of their accounts? Make sure to get their username and passwords and to update you whenever the passwords change?

4. If they don’t have these documents, have they considered how they would like their assets to be disposed of?

5. Burial wishes. Again a very touchy subject.  Yet it is crucial to know their desires and this is often included in a will. Even more important is the details of any burial plot because sometimes the actual will may not be found in time.

6. Is a trust appropriate?  There’s 2 basic types of trusts: revocable (they can undo it at any time) and irrevocable (not undoable).  Tax benefits are given to irrevocable trusts but not to revocable ones. Yet, revocable trusts can be helpful in avoiding probate.  Probate is the court process regarding dealing with a will and the division of assets after someone dies. In a trust, the Trustee administers the trust and often can do it with no court interference, although each state has strict laws to guide them on how they must act.

7. Is it possible that an old will might need to be updated?  People often make joint appointments – which can now mean including a divorced spouse, someone who has passed away and many other things that are inapplicable. If the will or trust included successors ( someone who serves if the first chosen is unavailable) they will step in.  Yet, often there is no second successor chosen. Since you don’t want to change your will on a regular basis, it’s good to have a successor that is viable.

Now think about yourself.

1. Have you considered who you trust enough to be your Executor or Trustee?  Sometimes people will even pick an accountant or lawyer to serve. Sometimes you’ll have one person as your Executor and a separate Trustee to manage the trust for your children. It’s wise to have your children’s appointed Guardian(s) as the Trustee of the trust for their benefit if the person is financially responsible and is the person you would trust most to raise your children. However, suppose the person you desire would be the most loving Guardian to your kids, yet isn’t necessarily the most financially savvy?

2. Write down your assets, including accounts, online banking usernames and passwords and keep it in a safe place.  It’s easy to forget about things and things can get very complicated.  Banks are taken over, change account numbers, lose beneficiary documents and can make it terribly crazy. Keep some nice folders where you keep copies of documents and important things like beneficiary designations.  Also take some time to check that everything is up to date as far as names, account numbers and etc.

 3. Truly think about and discuss some of the possibilities.  Is that person you counting to take on your beloved dog really willing to do so?  Suppose they are unable to ?  Same with Guardians.

 4. If you cannot make medical decisions for yourself, who do you trust to do so?  Do you want a Do Not Resuscitate order? 

Now it may not be fun to think about this – so what happens if you just forget about it?  Well if you pass away with no will, you’re considered  ‘intestate  ‘.  Each state has its own laws.  Generally if you die and you are married, everyone assumes that all your assets go to your spouse. This is not necessarily true!  Each state is different but generally they get 1/3 to 1/2 and the rest will be divided by your children if you have them.  No spouse?  Generally, if your parents are alive it will all go to them – not to your brothers and sisters.  Dislike you deceased brother’s two bratty kids?  Depending on the state, they may get what would otherwise be his share.  You get the point.  Each state has orderly rules for division – but not necessarily the ones you would want!

It’s much more complicated than even the above, but just start thinking, taking stock and talking to your loved ones during these times.  Then reach out to us!

Happy Thanksgiving!

What has the Supreme Court Done for You Lately?

What has the Supreme Court done for you lately? As lawyers, we watch with amusement, as the media proclaims how the Supreme Court ruled this way or that, when they did nothing of the sort! We started to notice that often our friends were believing what the news said! So here we go - Supreme Court 101 and how the court really works and what their rulings mean.

First up, let’s talk about how a case gets to the Supreme Court. Take a note that almost everything we say here is a generalization, because there are a million variations and exceptions to everything!

First there had to be a state law or action that somebody said violated the U.S Constitution or federal law. There are three levels of state courts and usually the case will have to go through all three state levels before it even gets to the federal level. Then, there’s 3 federal levels with the Supreme Court at the top. The Supreme Court can even choose NOT to take a case! Usually all levels after the first one are simply a review of what the lower court did, not a fresh look at the case.

What this means is that when cases get to the Supreme Court they are decided on the narrowest of issues, and often these issues are technical ones rather than issues that go to the real substance such as “Should abortion be legal?”, “Is it wrong to make a voter show ID?” etc. Yet the media often reports the Supreme Court’s rulings as being in favor of position when it has nothing to do with a position being right or wrong.

Also, lately we find the media reporting that courts in general are dismissing cases when they are just denying particular motions.  Think of it this way.  A case is a war, and, in that war, different “motions” are brought which ask the court to do specific things.  These are the “battles”.  In a lot of the election cases that are being filed, they are asking – by motion – for the count to be stopped.  This request is called an injunction.  The courts thus far have denied these requests but have not dismissed the cases themselves – which often means even that request will go up to the next level.


As far as what cases really stand for, let us take the famous Burwell v. Hobby Lobby Store case. The media reported this as a case that upheld freedoms for religious entities to deny health coverage of contraceptives to their employees.  Yet the Supreme Court did not really address religious freedom or even conception in their ultimate ruling! What the Supreme Court was actually deciding was whether a corporation was a “person” under a certain federal statute, also known as the Religious Freedom Restoration Act, and the funny thing is, in a definitional section of the statute, it included “corporations” as a “person”! 

 We can cite hundreds of cases as far back as Roe v. Wade. The basis of Roe v. Wade and why certain legal scholars think it should be overturned usually is about two technical issues regarding the initial court findings: whether the plaintiff had “standing” (the right to even bring the suit) and whether a certain decision was beyond the Court’s power (deciding criteria for the first 3 months of pregnancy when “Jane Doe” hadn’t established she was at this stage when she filed her case).

Let’s take another election example. A case is pending in Pennsylvania where they are claiming a violation of the equal protection clause of the Constitution, stating that due to guidance from the state’s top election official, counties were told they could share information with political parties about voters whose ballots had problems (allowing those voters to correct them). The claim is that largely democrat counties gave their democrat voters the ability to correct their messed up ballots where in the largely republican counties, the officials would not give the information to the party because they believed the “guidance” was improper. This one is moving quickly through the courts and as of writing this is about to go to the second tier of the federal level – in this case the Third Circuit Court of Appeals.  If and when it gets to the Supreme court, the real issue before the Court is likely to be something as simple as what is meant by the terms of the “Elections Clause” - the part of the Constitution that states, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof”. The question may simply be whether that top official’s “guidance” was an action that was not hers to make.

 It is also interesting what each of the individual justices actually do and what the media attributes to them. Take the Defense of Marriage Act (DOMA), case, United State v. Windsor. DOMA stated, that under federal law, the words "marriage" and "spouse" refer to legal unions between one man and one woman. Our U.S. legislature passed it in 1996. The Windsor case was filed in 2010 and by 2011 both the President and the Attorney General stated they would not defend the law. Chief Justice John G. Roberts wrote the dissent in that case (joined by others) largely arguing that the Court lacked the “jurisdiction” to review the case – because it was no longer a real case because the government was no longer was defending it.  Roberts was simply enforcing one of the simplest laws involving the court – that there be a real dispute before them, yet the media at the time reported Roberts as being in favor of the Act itself – an untrue statement.

We know this is all so complicated!  The key to remember is that the media does a really poor job in advising the public about how legal cases really work, so don’t believe what they say! So, what do you do?  I think the best way is to look at the actual court opinions. Get them online and you will usually see right at the beginning a synopsis of the actual ruling.  Google any legalese you don’t understand and after a bit, you’ll have a decent understanding of the terms because the same ones come up over and over. There’s a majority opinion and often you’ll find a dissent (statement of why the others disagreed). Sometimes you will even get other variations like additional dissents or agreeing with the majority, but for different reasons. Ruth Bader Ginsberg was known as the “Great Dissenter.” Now you know that this means that she was often on minority side of a decision but wrote strong decisions why she felt differently than the majority!