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.