20

The current debate right now is whether or not the US Senate can hold an impeachment trial and potentially convict an ex-president who is now technically considered a private citizen. To be clear, the impeachment occurred during the presidency, but the trial will be held after his presidency. The speculated purpose is to prevent the ex-president from running for office ever again. I'll take it a step beyond: Could the house/senate impeach and convict any private citizen? I wasn't sure if there's specific language in the US constitution that describes that impeachment is reserved specifically for a sitting president, or if it's another case of "this is how it's historically been done but it's debatable."

Rick Smith
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Sittin Hawk
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    If your question is "Can a person who has never held office be barred from ever holding office?" That might be a different answer. I believe someone with a serious criminal record, for example, could be barred from holding some offices, but the process would not be impeachment. A criminal record can indeed bar you from receiving security clearance, something that would be expected of a person elected to most high offices. – Darrel Hoffman Jan 25 '21 at 15:45
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    I'm going to challenge your assumption that Trump is technically a private citizen. If he receives a federal pension, he holds an "office of profit", and if the State Department has a protocol for him as a dignitary, an "office of honor". These can be stripped by impeachment: "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..." – user662852 Jan 25 '21 at 15:55
  • @DarrelHoffman In the US, elected officials do not have background checks and do not need a security clearance in order to see confidential information. In particular, the President automatically has access to all intelligence information and the ability to declassify it, as well. The President then shares information with Congress. (Technically, the President is the start of the chain for security clearances, so even if the President needed a clearance to see something then all they would have to do is grant themselves clearance to see it.) Staff/non-elected officials do need clearances. – user3067860 Jan 25 '21 at 21:09
  • @Sittin Hawk Thanks and that's as clear as mud, wouldn't you say? I for one was hoping you'd outline which parts of the literal text helped or hindered you, which interpretations were too fluid and what historical precedents you found. If it's just a general discussion, don't you think this looks like a Question of Law, not Politics? – Robbie Goodwin Jan 26 '21 at 00:00
  • Uhm, OP, don't forget that an Impeachment does NOT mean they are criminally guilty. It merely means that they are removed from the Office they hold and therefore loose any BENEFITS OF THAT OFFICE. Usually this is required for Presidents so they can actually BE PROSECUTED criminally, but for Trump it mostly means he looses most of his pensions etc. – Hobbamok Jan 26 '21 at 13:29
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    @Hobbamok To draw a parallel, a person can be sued by another person and can lose such a civil suit without being criminally guilty of anything - the court is just there to settle the disagreement and to order whatever compensation but nobody leaves with a criminal record. Impeachment is similar in that it's a tool parallel to the criminal justice system for managing disagreements and sanctions for government officials separate from criminal proceedings. The military analogue would be a court martial. – J... Jan 26 '21 at 19:39

7 Answers7

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Can the US House/Congress impeach/convict a private citizen that hasn't held office?

No. Only those individuals identified as shown below. A person who has never held such office cannot be impeached,

Article II, Section 4: Offices Eligible for Impeachment

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Rick Smith
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    For the OPs benefit, the link defines "civil Officers" through historical precedent as high level members of the Executive. – origimbo Jan 23 '21 at 17:04
  • @origimbo So a Senator or Governor, for example, are not "civil Officers"? –  Jan 23 '21 at 22:21
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    @fredsbend Governors are civil officers, but not of the United States. Senators can be expelled by the Senate, no need to impeach. – phoog Jan 23 '21 at 22:27
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    I would add that the constitution's provision that certain people may be removed from office by impeachment does not include a statement that this is the only permissible use of impeachment. It's not clear that the answer is "no." – phoog Jan 24 '21 at 00:52
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    @frеdsbend Senator William Blount was impeached in 1797 but the Senate dismissed the charges. Blount was expelled prior to this, so it's unclear whether the Senate meant to say senators could not be subject to impeachment proceedings. – hichris123 Jan 24 '21 at 01:49
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    @phoog Is the section title not presciptive? "Offices Eligible for Impeachment" implies that these are the only people that can be impeached. – Barmar Jan 24 '21 at 04:48
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    @Barmar The section title is an annotation, not a legal provision (but might be a good legal interpretation). – xngtng Jan 24 '21 at 19:27
  • @zhantongz I know that's common in modern legal documents, I wonder if it was true 250 years ago. – Barmar Jan 24 '21 at 19:29
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    @Barmar These particular annotations are not in the US constitution but rather produced by the Library of Congress. Had them been in the constitution they might have some more weight. – xngtng Jan 24 '21 at 19:33
  • @zhantongz Oh, I thought that was part of the transcription, I didn't check the original source. – Barmar Jan 24 '21 at 19:34
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    @origmimbo A Supreme Court justice was impeached once, so if this is a complete list then justices must fall under "civil Officers", too: "The only Justice to be impeached was Associate Justice Samuel Chase in 1805. The House of Representatives passed Articles of Impeachment against him; however, he was acquitted by the Senate." https://www.supremecourt.gov/about/faq_general.aspx – user3067860 Jan 25 '21 at 21:14
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    Lots of federal judges have been impeached, so the power definitely isn't limited to executive branch officials. However, one Senator has been impeached and the case was dismissed for lack of jurisdiction (though the Senate separately voted to expel the Senator in question, which is the constitutionally-defined way to remove a Senator.) – reirab Jan 26 '21 at 15:42
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Just to add to the answers given by others, any attempt to punish a private citizen by the legislature would almost certainly be an unconstitutional bill of attainder prohibited in federal law under Article I, Section 9, and in state law under Article I, Section 10.

Robert Hood
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    Maybe add that blocking a person from holding office in the future isn't considered punishment in this context? – Patrick M Jan 25 '21 at 02:45
  • @PatrickM why isn't it a punishment? Regardless, this answer is incorrect because impeachment and trial are not a bill, much less a bill of attainder. – phoog Jan 29 '21 at 19:32
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On the technical merits, impeachment only applies to "The President, Vice President and all civil Officers of the United States" (article II, section 4 of the US constitution), so private citizens who have never held public office are not subject to impeachment or trial in Congress. The general presumption is that any private citizen who has been accused (much less convicted) of high crimes or misdemeanors in a civilian or military court is unlikely to attain public positions of trust, so no special procedure is needed to handle such cases.

It helps to remember that impeachment and conviction are specifically meant to deal with the case of improper acts committed using public authority. As article I, section 3 says:

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.

Implying that Congress' role is to remove the person from any position of power, and then step back and allow the civil court system to try the offender as a private citizen.

Of course the Constitution is subject to interpretation, so Congress could redefine its role if needed, either through a revision of practice or a legislative expansion of its powers. But a straightforward reading of the Constitution limits Congress' power to stripping individuals of the rank and privileges of office.

Ted Wrigley
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    If impeachment were permitted for non-office holders, it could still be used to proactively prevent them from holding office in the future. E.g. one could imagine wanting to impeach Trump, Jr. to prevent him from following in his father's footsteps. – Barmar Jan 24 '21 at 04:45
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    @Barmar: Possibly, but I don't think that's a precedent we want to set. Imagine a party trying to impeach likely candidates from the opposing party on whatever pretext, just to take them out of the running. – Ted Wrigley Jan 24 '21 at 07:03
  • "so Congress could redefine its role if needed, either through a revision of practice or a legislative expansion of its powers" I hope you are not implying that congress can unilaterally expand its own powers. – Matt Jan 24 '21 at 16:01
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    @Matt: Ah, me... I keep forgetting that people don't really understand politics. *Of course* Congress can unilaterally expand its own powers. Congress writes laws, an Congress can write any laws that it likes. Congress is only limited by checks and balances — Presidential veto, Judicial review, voter irritation — and by the consciences of the individual members. That's why conscientious voting is so important; we need to elect people with strong moral character, or the whole system goes to shiz. As we have so recently seen... – Ted Wrigley Jan 24 '21 at 16:41
  • "The general presumption is that any private citizen who has been accused (much less convicted) of high crimes or misdemeanors in a civilian or military court is unlikely to attain public positions of trust" Alcee Hastings might disagree with that. – Just Me Jan 24 '21 at 19:25
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    @JustMe: Presumptions are often wrong, yet are still held. Weird that, yah? – Ted Wrigley Jan 24 '21 at 20:44
  • @TedWrigley: What is weird about that? A presumption that something is true merely shifts the burden of proof from those who would support the statement to those who oppose it. – supercat Jan 25 '21 at 16:13
  • You might want to consider adding that impeachment isn't just for criminal actions. "Indeed, in the past both houses of Congress have given the phrase "high Crimes and Misdemeanors" a broad reading, finding that impeachable offenses need not be limited to criminal conduct." https://en.wikipedia.org/wiki/Impeachment_in_the_United_States#Criminal_vs_non-criminal_activity On rereading your Answer, though, it might not add anything to your reasoning. – computercarguy Jan 25 '21 at 17:38
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No, they can't do this, as others have stated. However, they are not impeaching a former president in this case, as he was already impeached prior to him leaving office. What will be happening is the trial portion of the impeachment to decide if there are any punishments as a result of it. In this case, the removal from office isn't an issue since he already has left office. There is still the issue of if he can hold office again, and if he is convicted it is possible for the senate to vote to remove that ability.

In summary, a former president is not being impeached but the trial of an impeached president is going to be moving forward.

Article II, Section 4: Offices Eligible for Impeachment

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

(Impeachment info borrowed from Rick Smith)

Pitto
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Joe W
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0

As others have noted, I'm pretty sure that the no "bills of attainder" provisions would prevent Congress from preventing someone from running from office.

However, if there was some way to get a finding that someone was in violation of Section 3 of the 14th amendment, then that person would be prevented from holding office. I don't know who could make that finding.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Personally, I'm of the belief that the last president might be in violation of that rule.

Note that this applies only to people wo have taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States. So, my oath as a naturalized citizen wouldn't count. And, if you are like most people and have never taken an oath like that, then you don't have to worry.

Flydog57
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  • Interesting commentary on this (but, it's behind the Washington Post's paywall - I'm not sure if you get a free swig from well): https://www.washingtonpost.com/outlook/2021/01/12/14th-amendment-insurrection-trump-removal-problems/ – Flydog57 Jan 26 '21 at 01:22
  • You can summarize the content of the Washington Post article for those who don't have access. But there's no reason to think that the prohibition on bills of attainder applies to impeachment proceedings. They are entirely distinct from one another. A bill of attainder requires the president's assent or a veto override, in contrast to impeachment. In fact, the main reason for the revival of impeachment in England and the UK in the 17th and 18th centuries was to avoid having to obtain the assent of the monarch, as was necessary for bills of attainder. – phoog Jan 29 '21 at 19:44
  • My bill of attainder comment had nothing to do with impeachment. It addresses the original question "Can the US House/Congress impeach/convict a private citizen that hasn't held office?". Congress can't "convict" anyone other than an officer of the United States via Impeachment/Conviction. – Flydog57 Jan 29 '21 at 20:23
  • What I found interesting was a discussion of the bills of attainder questions, and then a discussion of the Ku Klux Klan Act (1871). From the article: "Be that as it may, a law barring Trump from future officeholding that is passed by a simple majority of the House and Senate would raise serious constitutional questions." But then later: "The new law could authorize federal prosecutors to bring a civil action against anyone who pursues public office in violation of Section 3. Thus if Trump seeks the White House in 2024, the Justice Department could go to court to disqualify him." – Flydog57 Jan 29 '21 at 20:41
  • The Constitution does not say that impeachment and conviction may only be used against officers of the United States. Under a literal reading of the constitution, anyone may be barred from office using the procedure, and officers may also be removed from office. That is, in Art. I it first limits the consequences of conviction without discussing who may be impeached. Then in Art. II it says that officers may be removed from office if convicted on impeachment for certain offenses. That doesn't prevent other people from being barred from office by impeachment. – phoog Jan 29 '21 at 20:43
  • @phoog: Are you saying that the last para of Art 1, Sect 3 would allow Congress to impeach anyone,& have the senate not bother to remove them from office (since they don't hold any) but to bar them from holding office in the future. That seems to be a stretch. The text: "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." – Flydog57 Jan 29 '21 at 20:51
  • I don't see anything in that quote that is inconsistent with my interpretation. There are two consequences available on conviction. That one is moot because the person doesn't hold office doesn't render the entire process moot, because the other consequence is still relevant. – phoog Jan 29 '21 at 20:53
-1

Courts serve all types of purposes and each type of conflict is resolved by a different system of justice depending on who the parties are and with whom they have grievance. Very roughly you can consider :

This isn't to say that constitutional law is limited to matters of impeachment, but where constitutional law acts against an individual agent of government the litigation process happens under the umbrella of impeachment.

A private citizen is only subject to criminal and common law. Just like a private citizen cannot be brought before a military court martial, so neither can they be impeached, for both of those are violations of a set of rules that private citizens have not elected to subject themselves to. Those rules only apply when an individual takes up formal service to the bodies where those rules apply.

J...
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  • There are plenty of civil cases where one side is a government and the other is a citizen. Even both sides may be governments. Common law has little to do with it in the US, especially in federal law. And the UCMJ is about the government punishing people for criminal behavior. This categorization is tidy, but it doesn't reflect reality. – phoog Jan 29 '21 at 19:46
  • @phoog In those cases the government in question is not acting as itself, but as a "person", I believe. A government in civil court is just another plaintiff or defendant - they are not exercising their special function as a government during the proceeding, they're simply taking part in a process just like anyone else would. I'm not sure what your point is about the UCMJ. Soldiers don't go to civilian court. Civilians don't go to military court. What's your point? – J... Jan 30 '21 at 12:57
-2

In fact, the constitution does not explicitly prevent an impeachment of someone who has never held office for the purpose of preventing that person from holding office. The constitution says two things. First, that certain officers may be removed from office through impeachment, and second, that impeachment can only serve to remove someone from office and/or disqualify that person from holding office. This leaves open the possibility of impeaching someone who has never held office.

Congress might reasonably pursue this if someone was thought to have violated a law that would disqualify the person from office, but for some reason the judicial trial resulted in acquittal, perhaps because of a poorly managed prosecution or some legal technicality.

phoog
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    I have to question the use of reasonably. Civil officers, as the term is understood, require confirmation by the Senate. The Senate can prevent an individual from holding an office by rejecting their confirmation. An impeachment and trial is not required. Extending the acquittal argument from the answer suggests that Representatives and Senators, whether expelled or not, or any other individual, could be impeached and tried for the sole purpose of preventing them from running for president or vice president. (For the last, consider Democrats v. Cruz and Hawley.) – Rick Smith Jan 24 '21 at 04:34
  • This would only apply to confirmed, not elected or directly appointed, offices, I'm not sure if that 100% matches the term Civil Officers, or (if it does now) whether it always will in future. Also might some persons be appointed to significant roles that don't need election or confirmation (now or in future), and yet still be deemed Civil Officers for this purpose? – Stilez Jan 24 '21 at 09:38
  • @RickSmith I'm thinking of president or vice president here; those offices are not subject to senate confirmation. But (as far as the plain text of the constitution is concerned) there's nothing preventing the house and senate from impeaching and conviction someone in order to ensure that they are unable to hold federal office in the future. Furthermore, there's no reason to think that "any Office of honor, Trust or Profit under the United States" comprises only the presidency, vice presidency and "civil officers"; it also includes the other two branches of government and the military. – phoog Jan 24 '21 at 23:29
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    @Stilez the house and senate, through impeachment and conviction, can disqualify someone from holding "any Office of honor, Trust or Profit under the United States." That includes all directly elected and appointed offices in all three branches of government. Once again, that removal on impeachment and conviction only applies to certain officers does not imply that the disqualification only applies to those offices. – phoog Jan 24 '21 at 23:31
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    @phoog - When Congress uses Article II impeachment, it is exercising its legislative oversight authority of the executive and judicial departments. Hypothetically, should Congress resort to its Article I authorities, only, to impeachment a non-government person or civil service employee; it could be seen as exercising judicial authority in violation of Article III. In the case of an acquitted civil service employee, the loss of employment would amount to punishment for being found "not guilty." I don't see how it could work, as described in the answer. – Rick Smith Jan 25 '21 at 02:00
  • @RickSmith article I says nothing about who may or may not be the subject of articles of impeachment. It only limits the available penalties. An impeachment and trial would be an incursion into judicial authority only if it purported to impose a punishment other than disqualification from office (or, of course, for someone who was in office, removal). – phoog Jan 25 '21 at 02:52
  • @phoog - "... disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States ...". In the case of a civil service employee, that means termination with no recourse or reemployment in another government position. However, this may depend on the definition of "office", which I take could mean an impeached and convicted employee would have no opportunity for promotion to any supervisory position. That's punishment, as I see it. – Rick Smith Jan 25 '21 at 03:32
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    @RickSmith of course it's punishment. Impeachment is about punishing people. There are only two punishments allowed. But congress's exercise of its authority to impeach anyone does not constitute an exercise of judicial authority because impeachment and conviction of impeachment are explicitly reserved to the house and senate respectively. – phoog Jan 25 '21 at 03:40
  • @phoog - I don't see how we could reach any agreement. Checks and balances go both ways. I would expect a court to nullify any such action by Congress. I can see the court possibly calling it "double jeopardy", which would not apply to those under the Article II impeachment clause. Not my down vote, by the way. – Rick Smith Jan 25 '21 at 03:55
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    I believe this answer is probably the most strictly correct one. – ouflak Jan 25 '21 at 12:07
  • How is someone who never held any office a "civil officer" and thus eligible for impeachment? (Art II, Section 4). Barring from holding office is a possible judgment (Art 1, Section 3), but in order to apply you have to impeach first... which you can only do to a very limited list of persons. – Polygnome Jan 26 '21 at 09:39
  • Article III, Section 1 says, "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Article II, Section 4 grants a specific exception to that for Congress to be able able to impeach "The President, Vice President and all civil Officers of the United States." No other such exception exists and it is already been established that even Senators cannot be tried in impeachment for want of jurisdiction. – reirab Jan 26 '21 at 16:11
  • @RickSmith the courts cannot nullify an Impeachment or a subsequent conviction because the houses of congress have the sole power to impeach and try impeachments. It is well established that double jeopardy does not apply to Impeachments; in fact the constitution explicitly excludes it. – phoog Jan 27 '21 at 00:28
  • @Polygnome the term "civil officer" does not appear in article I, which grants the sole power to impeach and to try impeachments, respectively, to the house and senate. It is mentioned only in article II in describing something that can be achieved though impeachment, but it does not say that this is the only use that may be made of impeachment. – phoog Jan 27 '21 at 00:30
  • @reirab that is no exception. Impeachment is not a judicial function. In the UK it is a parliamentary function, and, consequently, in the US system it is a congressional function. Article III is not relevant. The senate could overrule its precedent on the Impeachment of senators if it saw fit to do so. From your link: "It remains unclear on what grounds the Senate based its conclusion as to lack of jurisdiction": it may have been the fact that he was no longer a senator rather than the fact that he had been a senator. – phoog Jan 27 '21 at 01:12
  • @phoog It wasn't explicitly stated (and, thus, is unclear) whether it was on the basis of him not being a "civil officer" as a member of the Senate or whether it was on the basis of the trial being moot because he had already been expelled. Either of those would be sufficient to show that a private citizen can't be preemptively impeached, though. If the basis is that he's not a civil officer, neither are private citizens. If the basis is that he can't be tried for impeachment because he's no longer a government official, neither are private citizens. – reirab Jan 27 '21 at 04:06
  • @phoog - See, https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-2/qualifications-of-members-of-congress, Congressional Additions. "Thus, the Court appears to say, to allow the House to exclude ... on [the] basis of qualifications of its own choosing would impinge on the interests of ... constituents in effective participation in the electoral process, an interest which could be protected by a narrow interpretation of Congressional power." The same argument applies to presidential candidates. The court can use Powell to nullify such a disqualification. – Rick Smith Jan 27 '21 at 13:14
  • @RickSmith refusing to seat someone who had been elected after having been impeached, convicted, and disqualified to hold federal office is emphatically not "on [the] basis of qualifications of [the house's] own choosing." On the contrary, it is on the basis of a procedure that is specified in the constitution. The same is true of refusing to recognize electoral votes for a presidential candidate who had been disqualified from office by impeachment. – phoog Jan 29 '21 at 19:03
  • @reirab fair enough, but regardless, the senate isn't bound by precedent. – phoog Jan 29 '21 at 19:10