Impeachment, The Sequel, Is As Bad As The Original And An Assault On The Constitution
Here we go again. House spokeswoman Nancy Pelosi walks slowly and somberly an impeachment article through the Capitol, flanked by the caretakers giving her best impression of a funeral procession. Except this time they wear Covid masks.
Let’s call it “Impeachment: The Continuation”. It’s meant to be as pitiful as the original. Like a cheap movie franchise that Hollywood keeps taking advantage of, this bogus version is going to be a box office hit.
Pelosi reaches for the cameras and is likely mumbling something about “making history” like she did before. Maybe she’s handing out souvenir markers like lollipops again at a carnival in town. It’s an insult to charades. Pelosi seeks retaliation masquerading as impeachment.
The first impeachment trial in the Senate a year ago was an unfounded fiasco that resulted in President Trump’s acquittal. The Democrats did not come close to the two-thirds majority required for conviction and impeachment. This predictable result made the entire exercise a colossal waste of time.
It’s almost certain that the sequel will mimic the same bad ending. House Democrats stormed through an inappropriately designed impeachment article accusing Trump of “instigating a riot” when he delivered a speech at the nation’s mall on Jan. 6, 2021, and criminals decided to riot at the Capitol.
Pelosi and her colleagues did not bother to obey their own rules, the hearings, the presentation of evidence and witnesses, the right to hear these witnesses, the defense counsel’s right to be present and the right of a defendant to claim his own Build defense. By depriving Trump of the essential rights of due process, they have forsaken any semblance of fairness to pass what can only be described as “fake impeachment”.
That thin veneer of legitimacy is not going to stand up to Senate scrutiny when the trial is expected to begin on Monday, February 8, 2021. Republican senators are sure to attack the trampling of fundamental rights that are a valued part of any legal process, including impeachment. A motion to dismiss the case on this basis needs serious consideration.
A dismissal petition should also argue that the Senate lacks the competence and authority to conduct impeachment proceedings against a private individual who cannot be removed from office. Obviously, evicting a person from an office that they have already left is impossible.
Take a moment to read Article II of the US Constitution. It reads, “The President … will be removed from office for impeachment and conviction for treason, bribery, or other high crimes and misdemeanors.” However, Trump is no longer “the President” as the Constitution defines because Joe Biden is . We each have a president.
As law professor Jonathan Turley rightly argued, impeachment is the primary purpose of impeachment. Since Trump does not hold a federal office, a late trial against the former president in the Senate would be invalid and unconstitutional.
There are precedents for this, as Turley explained. William Blount, a signatory to the constitution, was the first federal civil servant to be impeached from office in 1798-99. Upon request, the Senate declined to hear the case because Blount had already partially resigned from office and the Senate was not responsible for a contentious matter.
Some have argued that the value of a retroactive impeachment trial against the Senate is in preventing Trump from holding future federal office. However, a careful reading of the Constitution reveals that disqualification from office is a secondary purpose. In fact, it is a separate vote that cannot take place until the Senate has decided on the removal. In other words, it is an optional, discretionary and conditional penalty. There can be no disqualification without removal. Since Trump cannot now be removed from an office he does not hold, such a disqualification vote would not be constitutionally valid.
If Congress is allowed to use retroactive impeachments to prevent individuals from taking office, what prevents it from using that tactic to forbid anyone from opposing politically in the future? The answer is nothing. This is certainly not what the framers intended.
Given the current composition of the US Senate (a 50:50 tie with Vice President Kamala Harris, who casts the casting vote), a motion for dismissal on purely political rather than constitutional grounds may not be successful. Trump’s defense attorneys will then be forced to argue the case because of his conspicuous lack of earnings.
Did Trump really “instigate an insurrection” as the impeachment article claims? It seems that the Democrats have carelessly assumed that Trump was the immediate cause of the violence without ever bothering to ponder what he actually told the assembled crowd.
In the relevant part, Trump said the following: “I know everyone here will soon be marching to the Capitol to peacefully and patriotically make their voices heard.”
Nowhere in Trump’s utterances did he advocate violence or property destruction. He did not instruct or encourage protesters to launch an attack on the Capitol, violate security, attack the police, threaten, riot, vandalize, riot, and riot lawmakers. On the contrary, Trump urged the crowd to act “peacefully”. He urged them to “make their voices heard,” not to turn their actions into violence.
Under the law, inciting requires that the speaker be clear, obvious, and unambiguous in order to direct certain acts of direct harm. There is no evidence that Trump did this. Yes, he commended the people for showing support for Republican lawmakers who contested the election vote and “fighting like hell” in challenging that result. Promoting a public demonstration, however, is not the same as inciting criminal activity. There’s a big difference between engaging passions in a speech – which all politicians do – and inciting a riot. The former is protected by freedom of expression, the latter is not.
As I pointed out earlier, Trump’s remarks on January 6, 2021 were ill-advised, if not foolhardy. They were driven by a stubborn refusal to accept defeat and the false belief that Congress had constitutional power to reverse the outcome by changing the number of votes. But his words on that day do not constitute a criminal offense and do not meet the legal definition of incitement.
The violence on our nation’s Capitol was grotesque and shameful. Those who have committed crimes must be prosecuted and punished. What happened there, however, is not a cause for indictment against Trump, nor should Congress be allowed to aggravate the tragedy by twisting the meaning of impeachment for political gain or persecution. It is time to end the politics of vengeance.
An attack on our seat of government should not lead to an attack on our constitution.