Category: News Feeds

Numerous law firms, like many other organizations, are trying to keep their employees connected to one another during the pandemic even though most people are currently working remotely. This often includes regular conference calls to discuss firm matters and emails which ensure that everyone on a team is on the same page when it comes to serving clients. Many law firms are also hosting virtual happy hours and other online social events in order to connect employees to law firms on a more meaningful level and try to somewhat substitute for the social interaction people have in an office. Although many of us are experiencing “Zoom fatigue” and may be getting tired of all the online networking all of us have to endure, such virtual happy hours are a great idea and should be embraced by more law firms.

As many readers of this column already know, I run a law firm with my brother, so we do not really have a need to host virtual happy hours. The closest thing we have is when I FaceTime my partner/brother so I can goof around with my nieces! As a result, I am relying on second-hand information about law firm virtual happy hours and how they are being received by associates and staff at law firms.

However, earlier in my career, I did experience a time when my employer’s office was shut down and my colleagues and I were forced to collaborate and connect remotely. In the fall of 2012, I worked at a law firm that was impacted by Superstorm Sandy. Our building was flooded, and the office did not have electricity for several weeks. As a result, all of my colleagues and I had to perform work remotely and connect through virtual means.

During this time, it was really important for me to have a connection to my law firm even though I could not be present in the office each day. When I performed work every morning, I drank coffee out of a firm-branded coffee mug just like I did at the office so that I felt a connection to my firm even though I was working remotely. I also made sure to connect with coworkers through group texts, Google Chat, and other methods. We did not have firm happy hours since we were only out of the office for several weeks, but we did have conference calls regularly so that everyone could get on the same page and connect with members of the law firm community.

Law firm virtual happy hours are an important part of maintaining connections to a law firm in alternative ways to meet the challenges of COVID-19. Such events allow lawyers and staff at an office to see other members of their team and know that they are still connected to an employer and have a common purpose. Of course, it is sometimes difficult for people to actively engage with other coworkers at virtual happy hours, especially if there are many people on the call. However, just like firm social events are an important part of the culture of the firm to forge a deeper connection among coworkers, virtual happy hours are also critical to connecting people at a firm.

Naturally, people have numerous reasons to kvetch about needing to participate in law firm virtual happy hours. For one, people often need to dress up a little for virtual happy hours, which is a huge ask these days since people usually complete work while dressed very casually at home. Also, people usually need to tidy up around their home in order to prepare to be seen on camera. Moreover, individuals often need to take steps to ensure that they are not interrupted during a call because children, significant others, and different members of a household can interfere with a call. However, these disruptions are a small price to pay in order to participate in a virtual happy hour.

Some of my friends who attend law firm virtual happy hours convey that such occasions may be a little awkward, and that they do not want to be put in a spotlight during such an event. In addition, people generally have “Zoom fatigue” these days, and don’t like to be subject to more virtual interactions than absolutely necessary. I definitely fall into this camp, and virtual events often remind me of the extraordinary times we are experiencing and how much I wish the pandemic would end so people can meet in person again.

However, everyone is dealing with unprecedented circumstances, and now, more than ever, it is important for people to know that they are part of a work community. It is difficult for law firms to connect with employees on a deeper level in the current environment, and virtual happy hours are a great resource for building culture at a law firm. As a result, stakeholders should be more open to participating in virtual happy hours, and more shops should host virtual social events for employees.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

* Jeff Bezos is seeking $1.7 million in legal fees spent defending a failed defamation lawsuit filed against him by his girlfriend’s brother. That’s probably pocket change for a guy like Bezos… [New York Post]

* An emoluments lawsuit against President Trump has been dismissed as moot. [New York Times]

* President Trump’s personal lawyer Rudy Giuliani has been temporary suspended from a YouTube partner program. [Jerusalem Post]

* Nicholas Sandmann, the teenager who went viral for a confrontation at a protest in 2019 and then sued a number of media outlets, has fired his lawyer over pro-Trump tweets his attorney made. [Herald Leader]

* A lawyer who allegedly smashed another attorney in the head with a can of Lysol last year has received his punishment. Maybe he was trying to prevent COVID? [Courier Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to 2020 law school admissions data collected by the ABA, what law school ties Yale Law for students with the highest median undergraduate GPA?

Hint: This non-T14 law school has a median undergrad GPA of 3.94 for 2020 — same as Yale.

See the answer on the next page.

In the midst of the pandemic and economic downturn, individuals and small businesses across the country are struggling. Lawyers practicing at small law firms can help by contributing their time and skills through their pro bono work.  

Practising Law Institute (PLI) is known for providing CLE and other professional development nationally, but the 80+ year-old organization is also heavily invested in pro bono. Kara O’Brien, Vice President of Programs, and Janet Siegel, Director of Pro Bono Services, spoke about PLI’s mission and offerings. 

Can you tell us more about PLI’s commitment to pro bono?

Kara O’Brien: PLI has long been committed to providing attorneys with the training they need to represent individuals in a pro bono capacity. It is really at the heart of our mission as an organization. We have a three-pronged approach to providing access to our programs for attorneys who are interested in serving underrepresented communities. With widely available scholarships, free Pro Bono Memberships for legal aid and nonprofits dedicated to providing pro bono legal services, and significantly discounted pro bono programs, our training is accessible and affordable. 

Why is this so important to your organization? 

KO: PLI has always supported the legal profession and, more broadly, the rule of law. We believe that increasing access to justice ultimately strengthens the rule of law for everyone and we are proud to play a part in that endeavor.

What does PLI’s pro bono department focus on? 

Janet Siegel: Our pro ono team works to raise awareness of the great need for pro bono representation, especially now during this pandemic, and offers training to support attorneys so that they can better represent pro bono clients. We offer programs on a wide number of substantive topics including immigration, domestic violence, criminal justice, housing, nonprofit organizations, consumer bankruptcy and veterans’ issues.  

How are these programs developed, and what does PLI do to ensure that its offerings are fresh and relevant to law firms and practitioners?

JS: We constantly follow legal developments and have a great team that can quickly produce and adapt relevant content for our audiences. We’re also very lucky to have highly experienced faculty from both law firms and legal services organizations who review our programs to ensure their relevance and timeliness. 

With that in mind, how have you adjusted your program offerings in response to current events? How have those programs been received? 

JS: During the past year, we offered a series of remote and on-demand programs on the impact of COVID-19 on immigration, nonprofit organizations, housing, and employment, as well as best practices and ethical issues in providing remote legal services, all of which drew very large audiences. In response to the protest movement in the wake of George Floyd’s death, we quickly organized our civil rights, diversity and related programs so that they could be accessed easily at pli.edu/accessjustice.  

How can lawyers at smaller firms become more involved with pro bono? 

JS: Attorneys interested in taking on either limited scope or full pro bono representation might  reach out to their local bar, court, or legal services referral programs in an area of interest to them. Attorneys who are interested but who might need additional training can check PLI’s pro bono page at pli.edu/probono. We offer programs for all experience levels, led by highly knowledgeable faculty who are deeply committed to pro bono issues. Our programs will also give you information about the many opportunities for pro bono, and possible organizations to contact.

Find something that matters to you and jump in. Lawyers have told us that their most rewarding work comes from their pro bono efforts.

Is there anything else you’d like people to know about pro bono at PLI? 

If you’re interested in learning more about pro bono in action, our podcast Pursuing Justice: The Pro Bono Files tells the “real-world stories” of attorneys taking on various types of pro bono representation.

OMG, I’ve retweeted something. Is it an endorsement? Does it mean I approve of the message? What if I “like” it AND retweet it? There’s been discussion about what it means when law profs retweet or like a tweet. Or more precisely, what it should mean and what it might mean to students.

To me, the fundamental point of Twitter is to learn. That’s what I do on Twitter. I learn about things that are interesting, from science to philosophy.  It also entertains me. I see humor. And I see joy and support and hope. Of course, I see the worst of Twitter, too.

I’ve started to retweet more political things. One reason is my law prof follows have been tweeting more political things. But it’s mostly because I find #whataboutism maddening. It’s like two kids engaged in the knife fight suggesting that only the stab wounds they inflicted are righteous. The gotcha games and the “refs” who play for one team only calling flags on the plays of the opposing team is troublesome to me. There are more determinative factors than who stabbed whom first, like the area of the stab wound and the intent behind the wound. I hope I get out of the habit of reading political twitter soon.

I retweet and like to my heart’s desire, both things with which I agree and things with which I disagree. I learn regardless of whether I agree with the tweet or not. Does that make me a Hegelian? Sure, sometimes I call out tweets I think are problematic, untrue, or wrong. And sometimes I telescope my policy preferences, especially in my areas of expertise. I might be right, or I might get schooled. Either way, cool.

The role of the legal academy is the search for our core truths, which requires some navel-gazing into moral values. Suppression of ideals — even bad ones — runs counter to that. It is easy to listen to others when we all have the same values. As a friend once told me: “Developing a capacity to listen and to understand different ideas, different cultures, different moral values and different experiences is surely the primary way to minimize one’s own ignorance and maximize your academic experience by learning from each other.”

That doesn’t mean we should tolerate bigotry in the academy. Bigotry’s root is ignorance, which comes from being sheltered from different world views. As my friend also said, “Bigotry has no place in an academic institution, particularly one engaged in the never-ending search for truth, the critical examination of moral values and the development of skills essential to creativity and the peaceful resolution of disputes.”

That search for truth requires professors to have a damn bit more humility and compassion than I often see. It means we must let go of our own egos (or, more precisely, our own insecurities). It means admitting we don’t have all the answers. It means admitting we aren’t always right.

And it means not being contrarian to win the 8th-grade popularity contest.  The purpose of counterarguments is to search for truth and to enhance the quality of your own arguments. It might even mean — GASP — rejection of your own arguments in the face of evidence to the contrary.

But, maybe it is the case that law professors need a Twitter policy in case students read the tea leaves and believe a professor has it in for students with certain ideologies. Here’s mine.

LAWPROFBLAWG’S TWITTER POLICY

1. A retweet is not an endorsement.
2. A like is not an endorsement.
3. An endorsement may not be an endorsement for the reasons you think.
4. If I follow an account, it does not mean I endorse or read that account’s posts. I follow over 18,000 people, and I just don’t have that kind of time.
5. When I tweet, it is usually only with the purest of heart and intent. But I’m human. If you have concerns or issues, please DM me. I will do my best to listen and be respectful. If you choose a more confrontational approach, I’ll assume that you just want to be made famous and will be far less likely to hear your concerns.
6. My tweets typically fall into the following categories:
   • Puns
   • Tweets about my opposition to certain food items like pineapple on pizza or Instant Pots. These are just my preferences and I am not trying to impose my will on others.
   • Tweets concerning two spaces after the period at the end of a sentence. These are rebellious tweets against my imperialist single-spacing overlords. We will be victorious.
   • Tweets of an analytical and intellectual nature. Yeah, I still got game.
   • Satire (“Snark”) usually applied to point out inconsistencies or faulty logic.
   • I reserve the right, as with everyone else, to sometimes tweet other things or be snarky. I’ll do my best to minimize that.
7. It is possible I engage with followers you do not like and that I do not like. That’s okay. I learn from people I don’t get along with. However, if we’ve had an unpleasant interaction, I might mute you. Life is too short. And I’m done walking on eggshells. Repeated unpleasantness will lead to me blocking you.
8. I know it seems like it, but I’m not always on Twitter. Also, I do work. A lot.
9. If you would like me to amplify your scholarship, DM me. I read it first, though.
10. You must remember this: A kiss is not still a kiss. Ask Fredo.
11. But a sigh is just a sigh.
12. The fundamental things apply, as time goes by.

Of course, I might change these as I go along.  But you can find them forever updated here.

I hope if you like pineapple on pizza, you don’t feel my antithetical view will affect your grade. And I won’t even notice if you single space after a full stop on your exams.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

Earlier this month, the U.S. Department of Agriculture (the USDA) announced the publication of its hemp production final rule in the Federal Register, which will go into effect on March 22, 2021. This final rule builds on the interim final rule (the IFR) that was published on October 31, 2019. It includes revisions based on three public comment periods but also takes into account “lessons learned from the 2020 growing season.”

These hemp regulations contain six key provisions:

1. Licensing requirements;
2. Recordkeeping requirements;
3. Procedures for testing the THC level concentration in the hemp plant;
4. Procedures for disposing of noncompliant hemp (i.e., hemp that exceeds acceptable THC threshold);
5. Compliance provisions; and
6. Procedures for handling violations.

The most significant revisions made to the IFR pertain to the procedures for testing the THC concentration and those for disposing of noncompliant hemp. Below are the highlights.

Time of sample collection. The USDA agreed with the concerns expressed by commenters regarding the burden of imposing harvest within 15 days of sampling. As a result, the federal agency extended the testing window within which hemp must be harvest to 30 days following sampling.

Where to sample from the plant. The Final Rule maintains the requirement that pre-harvest samples be taken from the flower material of hemp plants. The industry will be disappointed with this decision; many were advocating that samples should be taken from the “whole plant.” However, the Final Rule provides more information than the IFR on where to cut the plant material. Specifically, the Final Rule provides that a cut should be made 5 to 8 inches from (1) the “main stem” (includes leaves and flowers, the (2) “terminal bud (occurs at the end of the stem), or (3) the “central cola” (cut stem that has the potential of developing into a bud) of the flowering top of the plants.

According to the USDA, this new standard “strikes an appropriate balance between the need to collect a sufficiently large portion of the plant’s flower (where THC and other cannabinoids are their most concentrated), and the need to avoid cutting a portion that is so large that it would be logistically difficult to transport, dry, and prepare for lab testing.”

Sampling agents. The USDA is working on publishing additional training resources for sampling agents to help ensure consistency in the manner in which samples are collected nationwide.

Acceptable THC threshold. The Final Rule maintains the total THC limit, which is the sum of the delta-9-THC (THC) and THC-acid (THCA) content. The total THC limit is problematic because this testing method tends to increase the THC concentration in the hemp sample, making it difficult not to exceed the allowed threshold. Moreover, because few hemp genetics currently on the market would comply with a total THC testing method, this rule forces producers to carefully select the types of seeds they buy from a limited sample.

Negligence threshold. Hemp producers are required to dispose of plants that exceed the acceptable THC level. Nevertheless, if the plant tests at or below the newly adopted 1% negligence threshold (the USDA increased it from 0.5%), then producers will not have committed a negligent violation. Note that the Final Rule limits the maximum number of negligent violations that a producer can receive in a growing season to one.

Registration with DEA. The Final Rule maintains the requirement that all hemp testing laboratories be registered with the DEA. However, due to the limited number of DEA-registered labs to test anticipated hemp produced in 2020 and possibly in 2021, the USDA convinced the DEA to further delay enforcement of this requirement until January 1, 2022 (the original delay extended to October 31, 2020, or the publication of this Final Rule). The USDA continues to argue that this requirement is needed because labs could potentially receive hemp that exceeds the authorized 0.3% THC threshold (i.e., marijuana).

Noncompliant hemp disposal. The Final Rule affords alternative disposal methods that do not require the use of a DEA-registered reverse distributor or law enforcement. These alternative disposal methods can be found here.

State and tribal plan approval. Lastly, the Final Rule addresses the potential need for states and tribes to revise and resubmit for approval their plans in order to align with the requirements imposed under the Final Rule. The Final Rule also stipulates that states may continue operating under the 2014 Farm Bill until January 1, 2022. While this option will further delay the establishment of a uniform national hemp program, it will afford states more time to revise their plans and regulations and prepare growers to comply with the Final Rule, which is a good thing.

In sum, the Final Rule contains improved regulations that suggest another step towards full implementation of the 2018 Farm Bill. Nevertheless, regulations such as the testing of hemp plants using DEA-registered labs are bound to cause more headaches for the industry. This is a shame given the numerous challenges with which hemp stakeholders have been faced for the past two years.

At this point, all we can wish for is that the Biden administration, including incoming Secretary of Agriculture Tom Vilsack, who is viewed as an advocate for the hemp industry, will promptly review the Final Rule and tackle the lingering issues that may further hinder the growth and development of this promising industry. One possible route to doing this would be for the USDA to reopen the rules for public comments, which seems plausible given the issuance of a White House memo last week, encouraging federal agencies to consider extending the comment periods for rules that have been finalized but have yet to go into effect.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

Mike Lindell is bigly mad. The Daily Mail published an article linking him romantically to actress Jane Krakowski, and the My Pillow CEO is not having it. How very dare they imply that an attractive film star would voluntarily spend time with a frothing conspiracy theorist such as himself, much less that he would woo her with gifts of wine and flowers? This aggression will not stand, man!

So Lindell hired Charles Harder, the “Gawker killer” in the flesh, to exact just retribution. As the Daily Beast was first to report, Lindell filed a defamation suit in the Southern District of New York demanding that a jury hear his claim and pour dollars into the gaping hole in his soul occasioned by this vile calumny.

Ms. Krakowski appears to be taking the article in stride, without even threatening to sue over the report that she spent nine months in a relationship with a right wing troll.

“Jane has never met Mr. Lindell. She is not and has never been in any relationship with him, romantic or otherwise,” her publicist said in a statement. “She is, however, in full fledged fantasy relationships with Brad Pitt, Rege-Jean Page and Kermit the Frog and welcomes any and all coverage on those.”

But Lindell, who told chief investigative reporter Laura Collins (also a named defendant) that “I have never even heard of Jane Krakowski???” claims to have been grievously injured.

Presumably, Lindell has bigger fish to fry, what with a defamation suit by Dominion Voting Systems looming on the horizon and his product being yanked off retailers’ shelves. (Maybe Harder is throwing this one in as a freebie?) But more to the point, exactly how was the My Pillow Guy injured by this story? Isn’t the harm here along the lines of suggesting that he honeymooned in Cleveland and eats pineapple pizza?

It’s not even adultery, since Lindell isn’t married. In fact, he left his first wife for another woman while two of their four children were still living at home, remarried for one month in 2013 to a woman who accused him in an affidavit of trying to run her over, and was accused of physical abuse in an application for a protective order by yet another woman he dated. Nonetheless, this good family man seeks recovery for damage to his sterling reputation.

“As an evangelical Christian, Mr. Lindell is piously devoted to his religious faith, his family, civic involvement and charity. He is not at all a secretive or sordid person, as Defendants portray him in the Article,” writes the guy last seen leaving the White House with a memo outlining a plan to declare martial law and overturn an election. “Mr. Lindell likewise does not engage in any sort of scandalous, clandestine affairs of the kind described in the Article.”

His company did agree to pay $2 million in fines for deceptive advertising in 2016, but that was hardly clandestine, so… fair enough.

Lindell further claims to have been harmed by the suggestion that he bought champagne and expensive spirits for Krakowski, saying “He founded Lindell Recovery Network, a platform that helps those struggling with addiction connect with Christian recovery organizations. As a recovering alcoholic, Mr. Lindell would never purchase liquor or champagne, or foist alcohol on others, and Defendants’ statement that he did so is highly injurious and insulting to him.”

Oddly, Lindell insists that The Daily Mail is well known to be “generally unreliable,” pointing to Wikipedia’s ban on using it as a citation source — which rather undercuts the claim that he was harmed because so many people believed the story.

Moreover, despite multiple quotes from anonymous sources, the suit asserts that there is “no indication that Defendants ever attempted to contact numerous other witnesses who would have been in a position to confirm or deny the claims in the Article”

Well, good luck My Pillow Dude. And don’t sue us — WE BELIEVE YOU. We are one thousand percent certain that Jane Krakowski would never in a million years get involved with you.

Lindell v. Mail Media, Inc. (1:21-cv-00667) [Docket via Court Listener]
EXCLUSIVE: Trump-loving MyPillow CEO Mike Lindell had secret romance with 30 Rock actress Jane Krakowski and wooed her with flowers and champagne in relationship that BAFFLED her friends [Daily Mail]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

I think it depends on the law firm. At my law firm, yes, I think things will change because people think more about comfort and practicality now. If it wasn’t already clear, I think the pandemic certainly solidified that. At a law firm, people are still going to judge what you’re wearing. It does reflect on the professional part of the job. It’s heading in a way that’s a little bit more toned down, but may have to correct itself eventually and become a little more ‘formal.’ I think people will find more of a middle ground and just be more practical in understanding that you can have flexibility that maybe wasn’t there in law firms before.

— Meghan, 32, a lawyer at a Boston-based law firm, who is currently working from home in Hawaii, commenting on whether she thinks thinks the pandemic will actually change the corporate dresscode at her firm. Although things are very casual right now, she says, “I don’t want to overdo it. I’ve been trying to be conscious of being in a totally different climate—I don’t want to be wearing a tank top— so that I look somewhat appropriate.”

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

After walking through the language of the impeachment language enshrined in the United States Constitution, I pointed out that the failure of Chief Justice John Roberts to preside over the impeachment trial of Donald Trump amounts to a gross dereliction of his constitutional duties. In the immediate aftermath, I fielded criticism from folks on social media arguing that my interpretation had to be wrong because Trump is not “the” president, but “a” president.

On the surface it’s an attractive argument. But it’s one that unravels with a cursory review of the whole paragraph in context, a common sense consideration of what a Framer would have meant when choosing that language, and it really crumbles if you take into account the history of impeachments that the Framers drew upon. Such is the perniciousness of the cult of textualism and the arrogance of declaring an “obvious” reading based on snipping words out of context.

Again, here is the language at issue:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

What does it mean when the presiding officer clause says, “When the President of the United States is tried”? Roberts is seemingly taking the sentence to mean “the” current one. Since “the President” is Joe Biden — despite Rudy’s best efforts — then “the President” isn’t being tried. That’s certainly one meaning of “the” president. But in the context of a passage about trials of breaches of public trust by those holding specific civil offices, “the” is more accurately read as, for instance, “when the office of president is the subject of the impeachment as opposed to when it’s the office of the Secretary of State.”

This is, by the way, how you write any rulebook. And the Constitution is nothing if not a rulebook. It’s why the NFL calls it “roughing the passer” and not “roughing a passer.” It could apply to a QB or to a running back attempting a pass or a punter faking it, because the rule applies to whichever individual acted as “the” passer on a play. Multiple people can throw passes during a game, but the penalty is still defined by who was the passer at the time of the foul. Likewise the same rule refers to “a pass rusher” because multiple people hold that office on any given play. It’s why this is a trial of the president for what he did on January 6, and not a judge.

It also strains common sense to think the Framers were trying to get cute with “the” and “a” in a document where they had just set up a bunch of civil offices including “the” president, but wanted people to apply an acontextual reading “the president” when it comes to one and only one clause. The command that the Chief preside relates to the substance of the impeachment, not the timing of the trial. To assume the Framers intended “the” to mean the latter requires imagining that they chose that particular meaning of “the” because they sat down to craft the sentence specifically in contemplation of the rare instance where late term conduct results in the trial of the president taking place after the term ends? Assuming that wasn’t top of mind when the Framers drafted this language, the plainest read of “the president” is as a description of the substance of the impeachment.

And that’s because the Framers thought presidential impeachments would be a big deal! That’s why they demanded the Chief’s impartial hand. It’s not because they worried about the Chief’s schedule.

Here’s where Jonathan Turley’s 1999 article on impeachments — that everyone is trolling him for contradicting himself over now that it’s convenient for him — is also instructive. In the article, Turley charts the history of impeachments from the English tradition through America’s experience with this precise language. What he discovers is that the matter of impeaching former officers comes up very rarely, but the consensus is that a private citizen cannot be impeached, but that that does not hinder impeaching a former official because the trial of a former official for their conduct while holding civil office is a trial of the civil officer.

In other words, the weight of legal history surrounding impeachments recognizes that this is not a trial of “private citizen Donald Trump who happened to have once been President,” but “a trial of the President of the United States for his conduct” and the fact that it’s happening two weeks later doesn’t change that.

Like most words, the meaning of “the” depends on context. Anyone reading that passage in 1787 or even 2020 would take it to mean that the Chief Justice is supposed to preside when the trial relates to presidential misconduct as opposed to misconduct by a lower officer. It took a moonshot of unlikely circumstances to create this post-term trial and it’s bonkers to try and use this series of insurrectionist events as an invitation to pluck a word out of context and insert an intention to limit the Chief’s involvement to cases where a sitting president is involved out of whole cloth.

God help me for writing this sentence, but we need a little bit of originalism in here. The original public meaning of this passage isn’t difficult to suss out.

Earlier: John Roberts Weaseling Out Of Donald Trump Impeachment Trial Warrants His Own Impeachment

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.