Impeachment Lessons and The Midnight Special


This post will eventually test your affinity for the 1970s, which featured both Richard Nixon and The Midnight Special. The Special was formative in my teenage years, which explains a great deal.

But first, many thanks to the Network of Trial Law Firms for the opportunity to speak in New York on “Impeachment Lessons for Internal Investigations”:

People sometimes ask for good basic texts about impeachment generally.  Here are a few suggestions:

Impeachment: A Handbook by Charles Black.  This slender, clear, nuanced volume is where you should start. As noted by Lawfare blog:

The most important book ever written on presidential impeachment is only 69 pages long. Charles Black, Jr.,’s Impeachment: A Handbook was published in the summer of 1974, at the height of the Watergate crisis, and reissued in October 1998, two months before Bill Clinton became the second president in U.S. history to be impeached.

Read the full post here.

Impeachment: The Constitutional Problems by Raoul Berger.  From the Amazon review:

The little understood yet volcanic power of impeachment lodged in the Congress is dissected through history by the nation’s leading legal scholar on the subject. Berger offers authoritative insight into “high crimes and misdemeanors.” He sheds new light on whether impeachment is limited to indictable crimes, on whether there is jurisdiction to impeach for misconduct outside of office, and on whether impeachment must precede indictment. In an addition to the book, Berger finds firm footing in contesting the views of one-time Judge Robert Bork and President Nixon’s lawyer, James St. Clair.

Presidential Impeachment by John Labovitz.  From the Yale University Press blurb:

In this thorough and thoughtful examination of the constitutional issues involved in the impeachment of a president, Labovitz, a lawyer who served on the impeachment inquiry staff of the House Judiciary Committee in 1974, incorporates the Nixon experience into American history over the last two hundred years.

High Crimes and Misdemeanors by Howard Fields, a UPI reporter.  Not the best on this list, but useful.

An Affair of State by Judge Richard A. Posner.  From the Harvard University Press description:

President Bill Clinton’s year of crisis, which began when his affair with Monica Lewinsky hit the front pages in January 1998, engendered a host of important questions of criminal and constitutional law, public and private morality, and political and cultural conflict.

In a book written while the events of the year were unfolding, Richard Posner presents a balanced and scholarly understanding of the crisis that also has the freshness and immediacy of journalism. Posner clarifies the issues and eliminates misunderstandings concerning facts and the law that were relevant to the investigation by Independent Counsel Kenneth Starr and to the impeachment proceeding itself. He explains the legal definitions of obstruction of justice and perjury, which even many lawyers are unfamiliar with. He carefully assesses the conduct of Starr and his prosecutors, including their contacts with the lawyers for Paula Jones and their hardball tactics with Monica Lewinsky and her mother. He compares and contrasts the Clinton affair with Watergate, Iran–Contra, and the impeachment of Andrew Johnson, exploring the subtle relationship between public and private morality. And he examines the place of impeachment in the American constitutional scheme, the pros and cons of impeaching President Clinton, and the major procedural issues raised by both the impeachment in the House and the trial in the Senate. This book, reflecting the breadth of Posner’s experience and expertise, will be the essential foundation for anyone who wants to understand President Clinton’s impeachment ordeal.

Pointing the way.

For hardcore constitutional analysis, your bookshelf should also contain Constitutional Grounds for Presidential Impeachment, the 1974 volume by the staff of the House Judiciary Committee with regard to President  Nixon.

Finally, to get the weekend started, nothing is better than The Emotions and “Best of My Love”:



Cocktails and Crime: Martini Quiz, Vermouth Ratios, Posner v. Holmes, New Gins and Crime Conventioneers

As is customary on Friday, a few White Collar Wire notes on cocktails and crime fiction.

National Martini Day (courtesy Bar Louie)

National Martini Day (courtesy Bar Louie)

June 19 was “World Martini Day.”  Seriously.  The London Telegraph posted a martini quiz.  How deep is your see-through knowledge?  Here is the first question:

The martini, a mix of gin and vermouth with a lemon twist or olive, is one of our most famous cocktails, but its history is cloudy. Which one of these is not a legend about its origin?


Two by two.

Two by two.

 From the CBS ManCave, a detailed discussion of the gin/vermouth ratio:

You stir dry vermouth and gin with ice then poured into a chilled cocktail glass. The amount of vermouth has gone through two distinct stages of reduction. The first was the increasing quality of the ingredients, so you didn’t need to bury the bathtub aspects of the gin. The second is the decreasing quality of some drinkers, who think that forgetting one ingredient of a two ingredient cocktail is somehow sophisticated. There are people right now with “Left” and “Right” written on their shoes, and even when they get that wrong they’re still doing better than the people who call a glass of gin a martini because they’ve at least remembered both of the relevant items.

As it should be.

As it should be.

The very reliable Emily Arden Wells at Gastronomista  (@xxGastronomista) sets out the gins you should be drinking:

There’s a lot of really exciting stuff happening in the gin world right now, and I love that gins are becoming more expressive and flavorful.  Companies are playing with flavors such as peaches, lemongrass, sage, and douglas fir, and the results are amazing.  The new diverse range of flavors in these different gins welcome new flavor combinations and innovative cocktails!  All of these gins are so gorgeous, they don’t need much dressing up, a simple martini with a complimentary garnish will do the trick!

From our friends at crime-fiction blog The Rap Sheet, two posts.

Richard Posner

Judge Richard Posner

First, writing for the United States Court of Appeals for the Seventh Circuit, Judge Richard Posner finds that Sherlock Holmes no longer enjoys copyright protection.  In his trademark style, Judge Posner notes:

 The estate asks us to distinguish between “flat” and
“round” fictional characters, potentially a sharper distinction
than the other one it urges (as we noted at the beginning of
this opinion), which is between simple and complex. Repeatedly
at the oral argument the estate’s lawyer dramatized
the concept of a “round” character by describing large circles
with his arms. And the additional details about Holmes and
Watson in the ten late stories do indeed make for a more
“rounded,” in the sense of a fuller, portrayal of these characters.
In much the same way we learn things about Sir John
Falstaff in Henry IV, Part 2, in Henry V (though he doesn’t actually
appear in that play but is merely discussed in it), and
in The Merry Wives of Windsor, that were not remarked in his
first appearance, in Henry IV, Part 1. Notice also that Henry
V, in which Falstaff is reported as dying, precedes The Merry
Wives, in which he is very much alive. Likewise the ten last
Sherlock Holmes stories all are set before 1914, which was
the last year in which the other stories were set. One of the
ten, The Adventure of the Veiled Lodger (published in 1927), is
set in 1896. See 2 William S. Baring-Gould, The Annotated
Sherlock Holmes 453 (1967). Thus a more rounded Holmes or
Watson (or Falstaff) is found in a later work depicting a
younger person. We don’t see how that can justify extending
the expired copyright on the flatter character. A contemporary
example is the six Star Wars movies: Episodes IV, V, and
VI were produced before I, II, and III. The Doyle estate
would presumably argue that the copyrights on the characters as portrayed in IV, V, and VI will not expire until the
copyrights on I, II, and III expire.

The estate defines “flat” characters oddly, as ones completely
and finally described in the first works in which they
appear. Flat characters thus don’t evolve. Round characters
do; Holmes and Watson, the estate argues, were not fully
rounded off until the last story written by Doyle. What this
has to do with copyright law eludes us. There are the early
Holmes and Watson stories, and the late ones, and features
of Holmes and Watson are depicted in the late stories that
are not found in the early ones (though as we noted in the
preceding paragraph some of those features are retrofitted to
the earlier depictions). Only in the late stories for example
do we learn that Holmes’s attitude toward dogs has
changed—he has grown to like them—and that Watson has
been married twice. These additional features, being (we
may assume) “original” in the generous sense that the word
bears in copyright law, are protected by the unexpired copyrights
on the late stories. But Klinger wants just to copy the
Holmes and the Watson of the early stores, the stories no
longer under copyright. The Doyle estate tells us that “no
workable standard exists to protect the Ten Stories’ incremental
character development apart from protecting the
completed characters.” But that would be true only if the
early and the late Holmes, and the early and the late Watson,
were indistinguishable—and in that case there would be no
incremental originality to justify copyright protection of the
“rounded” characters (more precisely the features that
makes them “rounder,” as distinct from the features they
share with their earlier embodiments) in the later works.

Not Richard Posner.

Must re-read that opinion.

One doesn’t normally get Holmes, Watson, Star Wars and Falstaff in federal courts of appeals opinions (especially within five hundred words of one another).

Second, again from The Rap Sheet, here are insights about this year’s annual Bouchercon crime fiction convention, to be held in November in Long Beach.