Fed Society Founder Steve Calabresi Was A Dick But He Was Smart. The Daily Caller Ruined That Too

If we wrote about it every time the Daily Caller published bootlicking bullshit with no legal or factual basis, we wouldn't have time to do anything else. But this isn't just your typical Daily Caller drivel. It was "written" (allegedly) by none other than Steven Calabresi, one of the founders of the Federalist Society. And it is one of the dumbest things I have ever read.

It's bad. It's really bad. It's bad even for 2019. It's bad even for a defense of Donald Trump. I might even go as far as to say it's bad even for the Daily Caller, and the fact that that's even a possibility should tell you how bad it really is.

A confession

Most of the time, I absolutely delight in tearing apart dumb legal arguments made by Republican sycophants. But I have to be honest: This one is a little painful.

Steve Calabresi is a professor at my law school. He taught one of my favorite law school classes, a comparative constitutional law seminar. It was a small class, and because I've always had a lot of thoughts about conlaw (surprise, surprise), I talked a lot. Professor Calabresi and I frequently disagreed, but he always appreciated a good argument on the other side. He was obviously brilliant, even when I hated his positions. He always came off as intellectually honest and intellectually curious. Our class had excellent discussions of all types of complex constitutional issues.

I have no fucking idea what has happened to Professor Calabresi since I took his class in 2013, but since then, he has apparently gone off the deep end. I truly have no explanation. My best guess is that he has decided it's worth it to embrace the daily horror that is Donald Trump because he's getting exactly what he wants for the federal judiciary -- the Federalist Society has hand-picked almost all of the federal judges Trump has appointed, which now includes two Supreme Court justices and 25 percent of all federal appellate judges.

Calabresi's Trump brownnosing isn't new. But somehow, it just keeps getting worse. And if this "article" isn't rock bottom, I shudder to imagine what rock bottom actually is.

When I first saw the title of this article -- "House Democrats Violate The 6th Amendment By Denying Trump A Public Trial" -- and that Professor Calabresi had written it, I stupidly assumed it would be an interesting piece about how the principles of the Sixth Amendment are so important that we should ensure they are followed not just during criminal trials, but during impeachment trials and civil trials, as well.

I should have known better than to make such an assumption.


Now, there is no way Calabresi himself wrote this steaming pile of mastodon shit. This writing isn't just beneath a former Supreme Court clerk; it's beneath anyone who passed the eighth grade. Unless he spontaneously lost 80 IQ points huffing paint at a MAGA tailgate, Steve Calabresi did not write these words. I don't even want to say that it was probably written by some unpaid FedSoc 1L intern. It reads more like it was written by a not-terribly-bright high school student trying to parrot something he overheard while his parents were watching Fox News.

But, for whatever reason, Calabresi put his own name on this paper that would get a D in a high school civics course. So it seems that this tenured professor of constitutional law needs a little constitutionsplaining.

Where to start?

Everything about this is bad, The legal "arguments" are almost entirely based on fiction, the "facts" appear to have been pulled out of thin air, and typos and grammatical errors abound.

The first sentence sets the tone for the rest of the piece by leaving out a word.

The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son.

OH, Trump and Rudy just wanted to "reopen a corruption"! Totes normal and grammatically correct.

Then we get to the crux of the "argument":

What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.


Impeachment, believe it or not, is right there in the damn Constitution. The House shall impeach and the Senate shall convict the motherfucker who commits high crimes and misdemeanors. See U.S. Const. art. I, § 2, cl. 5; U.S. Const, art. I, § 2, cl. 5; U.S. Const. art I, § 3, cl. 6-7; U.S. Const. art. II, § 2; U.S. Const. art. II, § 4.

So what are these fools talking about?

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.

That sentence, like the rest of this piece, is a trainwreck. And I'm still not quite getting what they're going for, here, so let's keep reading ...

For example, the Sixth Amendment gives criminal defendants the right to "a speedy and public trial." House Democrats are trying Trump in secret and are denying him the right to a public proceeding.

The Sixth Amendment also guarantees criminal defendants the right to be "informed" of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press. This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right "to confront the witnesses against him", which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right.

The Sixth Amendment AGAIN? Didn't I just write this post?! (Yes. Yes I did.)

The Sixth Amendment seems to be the right wing's latest talking point. While I'm glad to see that Republicans are finally acknowledging the existence of the Sixth Amendment, they appear to have absolutely no idea what it actually says or does.

Since many of these right-wingers fancy themselves "textualists," let's go to the text!

The Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Those first four words are important -- the Sixth Amendment is, quite explicitly, about criminal prosecutions. And the Constitution is also quite explicit that impeachment is not a criminal prosecution.

But you know what? For a second, let's ignore the fact that the conlaw prof is completely wrong about what the Sixth Amendment says and does. EVEN IF IMPEACHMENT WERE A CRIMINAL PROCEEDING, THIS ISN'T WHEN THE SIXTH AMENDMENT WOULD APPLY.

Like actual criminal proceedings, impeachment has different stages. Criminal cases, like impeachments, tend to begin with a criminal investigation. An investigation is not a criminal prosecution, it's an investigation. If an investigation finds evidence of a crime and if you are charged with a crime, then you get all of the protections the Sixth Amendment affords.

While impeachment proceedings are ABSOLUTELY NOT criminal proceedings, the two are similar procedurally. But the House isn't the judge or jury in a criminal prosecution -- it's the grand jury. The Senate, which has the job of deciding whether to convict or acquit, is where something looking like a jury trial occurs.

As I wrote just a couple of days ago:

One more time, for the cheap seats in the back: Impeachment is NOT a criminal proceeding. And even if impeachment were a criminal proceeding, this isn't the point in the proceeding where the Confrontation Clause would apply. If impeachment were a criminal proceeding, the House would be like a grand jury. It's the House's job to investigate and determine whether there's enough evidence to send the case over to the Senate for the trial. The Senate is where the actual impeachment trial occurs.

And, as always happens when political hacks try to distill a constitutional provision down to a talking point, they miss the point. The Confrontation Clause means criminal defendants have a right to confront the evidence against them. During the trial. In a criminal proceeding. And only when that evidence is actually considered by the court.

But you know what? Let's consider what would happen if the Sixth Amendment applied during investigations. I'm all for more criminal justice reform! If we take Calabresi's (and Mollie Hemingway's and Rand Paul's) arguments at face value, it seems like they think the Sixth Amendment should apply during criminal investigations. That means that anyone who is being investigated by the police needs to be told by the police that they are being investigated, what they're being investigated for, who the witnesses are against them, and what the evidence is against them. They would also be entitled to a public defender at that point.

I mean, sure, if that's what you're going for. But, for some reason, I don't think it is.

The fact of the matter is that even if the president abused his powers in urging the president of Ukraine to reopen the investigation in that country into illegal activity by the firm that employed Hunter Biden, House Democrats are abusing their power of impeachment by denying Trump his basic rights as a defendant in the case against him under the Sixth Amendment.


Impeaching a president and overturning the results of the 2016 presidential election is a really big deal.

Totally. For sure, brah. Like, wow.

Yeah, there is just no way this was written by the same prof I had great discussions with about whether money bail is unconstitutional.

Also, the talking point about impeachment overturning an election is absurd. The whole point of impeachment is to prevent corruption and get rid of the motherfucker who commits high crimes and misdemeanors. Also, in the 2016 election, the electoral college overturned the will of the people, who preferred Hillary by around 3 million votes. Get bent.

For House Democrats to conduct an impeachment investigation while violating multiple rights that Trump enjoys under the Sixth Amendment is a gross abuse of power, which is at least as serious as any abuses of power committed by Trump. The leaders of this unconstitutionally conducted and Kafkaesque "trial" should be expelled from the house for their unconstitutional behavior thus far, and the voters should "punish" House Democrats in the 2020 elections by electing a Republican House majority.

Awww, the ghostwriter pulled out this thesaurus and found the word "Kafkaesque!" How cute! But, umm, someone needs to tell him that the House is not who tries an impeachment case. That's the Senate.

The capitalization (or lack thereof) of "House" is a bit confusing. I'm not sure if the writer is intending to say that congressmen should be expelled from their homes or removed from office.

Also, I don't think he actually knows how to use quotation marks.

I would say the Daily Caller's editors must have been sleeping that day, but there's no way that site has actual editors, right?

Violations of President Trump's Sixth Amendment rights by House Democrats are lawless, unconstitutional, and suggest that the whole impeachment matter should be dropped. If Democrats in the House believe in the sanctity of the Constitution they should abandon their unconstitutional impeachment inquiry immediately.

I like how the proposed solution here is not to start following these "rules" that don't actually apply to impeachment, but to drop the impeachment inquiry immediately.

Yikes, that was bad

I am now dumber for having read that.

If a law student wrote this, Professor Calabresi should probably fire him. Immediately.

I also hope his uncle, Judge Guido Calabresi on Second Circuit Court of Appeals, has some words for him about this.

[before you click on this, I'd like to remind you that you're about to click on a link to the Daily Caller]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.

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