Today Judge James Chalfant issued a ruling in a lawsuit brought by the Los Angeles Association of Deputy District Attorneys against Los Angeles District Attorney George Gascón, challenging many of the District Attorney’s recent policies. The decision was a nearly complete victory for the ADDA.

The Special Directives require prosecutors to violate California law, their oaths of office, and their ethical and professional obligations. The Special Directives violate the Three Strikes law by prohibiting prosecutors from pleading and proving prior convictions in new cases. Prosecutors have a ministerial duty to allege all prior convictions under the Three Strikes law. Respondents refuse to perform this duty. The Special Directives also require deputy district attorneys to wrongly argue that the mandatory obligation to plead and prove strikes is unconstitutional as violative of the separation of powers.

. . . .

The District Attorney’s disregard of the Three Strikes “plead and prove” requirement is unlawful, as is requiring deputy district attorneys to seek dismissal of pending sentencing enhancements without a lawful basis.

Paid subscribers to my newsletter, the Constitutional Vanguard, were ahead of the curve on this one. I put out a newsletter last night with a prediction about the outcome of the lawsuit. Tonight I sent paid subscribers a missive in which I assessed my predictions in detail. You’ll have to subscribe to see whether my predictions were correct, but I’ll give you a little hint: the title of tonight’s missive is Who Is Writing This Newsletter? Patterico? Or Carnac the Magnificent?

(Always trust content from Patterico!)

The extent of the accuracy of my predictions amazed even me. Just think: you too could be getting that kind of insight delivered directly to your inbox. (And if we build up a base of subscribers, we can have exclusive discussions among civilized people.)

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[guest post by Dana]

As you know, Trump has repeatedly called the current impeachment a “hoax”. With the trial set to start tomorrow, his defense team calls the impeachment little more than “political theater,” and claim that it is unconstitutional because Trump is no longer the president. Except he was the president when his loyal and outraged supporters lay siege on the U.S. Capitol on Jan.6:

Lawyers for Donald Trump blasted what they say is the “Trump Derangement Syndrome” of Democrats as they made their closing argument ahead of the start of a Senate trial on Tuesday to determine if the former president should be convicted of inciting an insurrection.

…

“One might have been excused for thinking that the Democrats’ fevered hatred for Citizen Trump and their ‘Trump Derangement Syndrome’ would have broken by now, seeing as he is no longer the President, and yet for the second time in just over a year the United States Senate is preparing to sit as a Court of Impeachment, but this time over a private citizen who is a former President,” Trump’s lawyers said on Monday. “In this Country, the Constitution — not a political party and not politicians — reigns supreme. But through this latest Article of Impeachment now before the Senate, Democrat politicians seek to carve out a mechanism by which they can silence a political opponent and a minority party. The Senate must summarily reject this brazen political act.”

So, because Trump is no longer the president, the focus of his defense will be on the constitutionality of said impeachment. (Reminder: Trump was the president when the violent events of Jan. 6 erupted at the Capitol):

In a pretrial brief Monday that offered the fullest picture of their defense, the former president’s team said it intends to make the constitutionality of the trial a central theme of their defense, arguing that the Senate can’t convict Mr. Trump because he is no longer in office.

Trump attorney Bruce L. Castor Jr. said Monday that the defense is arguing that “we are in the same spot as we would be if Donald Trump had died and they were still trying to impeach him.”

Anyway, House impeachment managers weren’t buying what the defense team was selling because, as everyone knows, Trump was the president when the attempted coup took place on Jan. 6:

House impeachment managers responded to the final pretrial brief from Donald Trump’s legal team on Monday, saying the former president’s defense — that such a trial is unconstitutional and that he quickly moved to suppress the violence during the Capitol riot last month — is “wholly without merit.”

“The House denies each and every allegation in the answer that denies the acts, knowledge, intent, or wrongful conduct charged against President Trump,” the Democratic managers wrote. “The House states that each and every allegation in the article of impeachment is true, and that any affirmative defenses and legal defenses set forth in the answer are wholly without merit.”

“The House further states that the article of impeachment properly alleges an impeachable offense under the Constitution, is not subject to a motion to dismiss, is within the jurisdiction of the Senate sitting as a court of impeachment, and should be considered and adjudicated by the Senate sitting as a court of impeachment,” they added.

Democratic managers also say that there is overwhelming evidence that Trump incited the rioting, as well as failed to take action to stop it.

As a reminder, this was what Trump tweeted on Jan. 6 at 6:01 pm before he was booted off Twitter and the world had witnessed his unhinged supporters lay siege on the U.S. Capitol:

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

You can read the defense brief here.

–Dana

NBC News has a piece by one of my favorite constitutional law professors, Steve Vladeck of my alma mater, the University of Texas School of Law at Austin. His arguments were a centerpiece of my recent newsletter (you should be subscribing!) which extensively argued the case for the constitutionality of the impeachment of (to use Colin Jost’s term) “former social media influencer Donald Trump.”

Prof. Vladeck’s NBC News piece argues that if senators cynically employ a clearly wrongheaded constitutional theory — such as the theory that only current officeholders can be convicted — voters should punish that act at the ballot box. So far so good.

But then Prof. Vladeck endorses a theory that I find very troubling: “popular constitutionalism.” I’ll quote Prof. Vladeck at some length here:

The central idea of “popular constitutionalism,” a school of thought most often associated with Stanford law professor Larry Kramer, is that there are circumstances in which the public does a better job of promoting constitutional values than the courts — even, perhaps counterintuitively, with respect to certain minority rights. Kramer’s work focuses on contexts in which the courts have adopted substantive interpretations of the Constitution at odds with either prevailing majoritarian sentiments or the preservation of individual rights. But the idea reverberates even more forcefully in contexts in which the Constitution sidelines the courts — in which the political branches don’t just have a word but, indeed, have the last word on the meaning of our founding charter.

Critically, the central virtue of popular constitutionalism is that it is directly democratically accountable — so that representatives who embrace constitutional positions at odds with the preferences of their constituents will, at least in theory, soon be replaced. So framed, the question isn’t just whether the public desires a particular substantive policy outcome; it’s whether the public supports the constitutional arguments underpinning that outcome. In a perfect world, then, members of Congress would be disincentivized from embracing weak constitutional arguments because they are weak. And it doesn’t matter that most Americans aren’t constitutional lawyers; popular constitutionalism embraces the notion that all of the people have a voice in giving content to the document — not just those who study and teach it.

I find this theory dangerous. My concern with this theory is that, taken to its extreme, it essentially would turn responsibility for interpreting the Constitution to the equivalent of YouTube commenters with the franchise. Have you seen the polls on hate speech lately — or for that matter, almost any free speech issue? These are the people to whom you want to surrender constitutional interpretation? That seems like a very bad idea.

I raised this issue with Prof. Vladeck on Twitter, and to my relief he somewhat qualified his support for the theory, at least when I compare his tweet to the language of his piece.

I think you're overreading the piece to suggest that the people should interpret the Constitution *in lieu of* the courts. My only point here is that, in cases in which courts have *no* role, it's the people, not their representatives, who realistically have the last word.

— Steve Vladeck (@steve_vladeck) February 8, 2021

He does say in the piece that the argument for the theory “reverberates even more forcefully in contexts in which the Constitution sidelines the courts” — but, as I replied to him, I read the language of his piece as less qualified support for the theory. I am happy to see he too has reservations about embracing it entirely. And I do agree that senators who take the view that this impeachment is unconstitutional are wrong, and that citizens would be well within their rights to punish them at the ballot box for advancing this cynical and obviously incorrect view.

P.S. If you disagree with me about the constitutional arguments, make sure to read through my piece yesterday on it. If you like what you see, subscribe. The basic subscription is free, but there is bonus content– and there will be exclusive comment threads — for paid subscribers.