The Impeachment Was a Watershed Moment for Legal Blogging

Before Congress could even return to the ransacked Capitol, legal scholars were already discussing whether the Senate could try and convict an impeached official who was no longer in office.

February 16, 2021 • Commentary

This article appeared on The National Law Journal on February 16, 2021.

Former President Donald Trump’s second impeachment trial ended just 38 days after the Capitol was invaded. This speedy process was unprecedented in many ways, not least of which was the crucial role that legal blogs played in “crowdsourcing” the trial’s key constitutional question.

The Jan. 6 Capitol attack raised immediate calls for Trump’s impeachment. But with just two weeks remaining in Trump’s presidency, the completion of a Senate trial during his term in office was always unlikely. Before Congress could even return to the ransacked Capitol and resume counting the electoral votes on the night of the rampage, scholars and reporters had already flagged the impending question: Can the Senate try and convict an impeached official who is no longer in office?

As both impeachment in the House and a post‐​Jan. 20 trial in the Senate became more certain, scholars across the ideological spectrum quickly produced pieces exploring every aspect of this question. While some appeared in traditional op‐​ed fora like national newspapers, many were on legal blogs, where scholars can write without the length limitations of print media. These pieces came in such a high quantity and quality that prominent attorney Chuck Cooper was able to write with a (virtual) straight face that the scholarship on late impeachment had “matured substantially” in the previous 12 days.

This type of fast and in‐​depth legal blogging has become increasingly prominent. In a 2019 law review article, professors Jeffrey Fisher and Allison Orr Larsen identified a trend they termed “virtual briefing”—public online debates about pending cases where “arguments and counterarguments are being lobbed at each other in real time.” As they explained, legal blog posts are “accessible instantly” and “can be tailor‐​made to the issue and the case at hand.” And they noted that blog posts “can take a deep dive into one particular sub‐​issue” in a case, allowing multiple bloggers to create “a sort of online oral argument.”

While legal blogging itself isn’t new, the way it was utilized in the impeachment trial was new. Even as legal blogging about U.S. Supreme Court cases has become increasingly common, attorneys have remained loath to actually cite such posts in their briefs. In the five “major” cases this term, for example, none of the briefs filed by the parties cited any “virtual briefing.”

Neither the House impeachment managers nor Trump’s defense team, however, showed any similar hesitation to cite recent online scholarship in their arguments to the Senate. In the section of their brief addressing the constitutionality of the trial, the managers cited nine different pieces written after Jan. 6 (five op‐​eds, three blog posts, and an open letter signed by over 170 legal scholars). Trump’s defense similarly cited five such recent sources.

The most remarkable citation, however, was in the managers’ reply brief. The managers cited three new authorities that were published the week after they had filed their opening brief. Most notable among them was a Twitter thread by professor Brian Kalt from the day before responding to misrepresentations of his scholarship in the defense brief. Despite the reply brief having been due just 24 hours after the defense brief, the managers were nonetheless able to cite a new on‐​point authority published in that 24‐​hour span, perhaps a first in the history of legal briefing. Kalt’s tweets even appeared on the Senate floor during the managers’ arguments.

This kind of instantaneous response by a scholar addressing a citation to his own work demonstrates the unique strengths of online discourse. As professor Will Baude has explained, “blogs and Twitter provide much faster, and more accessible, ways to make, respond to, and curate” legal arguments compared to traditional outlets. And because Kalt was unquestionably qualified to opine on the subject, it didn’t matter what venue his response appeared in. As professor Stephen Sachs has stressed, it’s the expertise of the author rather than the outlet that matters. The managers took this approach to heart in their oral argument to the Senate, emphasizing the credentials of the scholars who had signed the open letter.

If the impeachment trial helps to break the taboo on mainstream legal citation to blog posts and Twitter threads, all for the better. Perhaps it won’t be too long before we see such a citation in a Supreme Court reply brief, showing the justices exactly what a scholar thinks about an argument in the respondent’s brief. When it comes to citing authority, attorneys and judges would do well to care more about source and substance and less about form and fora.

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