Judge John H. Wilson (ret.) provided this insightful article to the New York Analysis of Policy and Government.
Events have moved quickly since the January 6 riot at the Capitol (if you are on the right, its called a “riot,” and if you are on the left, its called an “insurrection”). Less than 10 days after a Trump rally ended with protestors invading the Capitol building, the House of Representatives has voted in favor of impeachment of former President Donald Trump. His alleged crime? “Incitement of insurrection.”
As described by Reuters, “(s)ome Republicans argued the impeachment drive was a rush to judgment that bypassed the customary deliberative process such as hearings and called on Democrats to abandon the effort for the sake of national unity and healing.” But Democrats would have none of that. “Democratic congressman Joaquin Castro called Trump ‘the most dangerous man to ever occupy the Oval Office.’ Congresswoman Maxine Waters accused Trump of wanting civil war and fellow Democrat Jim McGovern said the president ‘instigated an attempted coup.’”
It is worth noting that the first time the House impeached the President, the hearings moved forward at a more leisurely pace. Speaker of the House Nancy Pelosi famously stated that “no one is above the law” when she announced the House impeachment inquiry in September of 2019. From there, on October 31st, “The Democratic-controlled House votes 232-196 to pass a resolution setting procedures for the impeachment inquiry,” then held two weeks of hearings during November of 2019. It was not until December 18, 2019 that the House voted in favor of two article of impeachment.”
Incredibly, after voting in the articles of impeachment, Pelosi delayed providing those articles to the Senate. As reported by CNN at the time, “(s)ome progressives have urged Democratic leaders to withhold the articles until Senate Majority Leader Mitch McConnell, a Kentucky Republican, agrees to the parameters for the Senate trial that Democrats have called for…” When it became apparent that the Senate would not accede to any demands or requests from the House, the Impeachment Managers made a great fanfare of delivering those articles to the Senate on January 15, 2020, almost four months later.
Compare that approximately 120-day process with that conducted by the House in less than 10 days this January. With no hearings. No evidence. And no witnesses.
In my column of October 31, 2019, I noted the irregularities in the first impeachment of Donald Trump. Normally, “the Judiciary Committee is tasked with investigating impeachment allegations…(n)onetheless, the House Impeach Inquiry is not being handled by (the) Judiciary Committee alone – instead, the inquiry is being chaired by Congressman (Adam) Schiff (D-CA), as part of a joint committee.” Further, “the joint committee investigation has been conducted in secret. Witnesses are being questioned behind closed doors, in a room shielded from electronic usage, such as cell phones or laptops.” At that time, I compared these procedures to those used by the Star Chamber of Medieval England.
What are we to say about an impeachment without any hearings or due process for the accused?
“Lynching was originally a system of punishment used by whites against African American slaves. However, it was a common punishment for horse and cattle rustlers in the 19th century. Men caught committing the crime were often hanged on the spot without the benefit of a trial.”
To his credit, Chief Justice John Roberts has flatly refused to participate in the lynching of former President Trump. According to Fox News, “(Senator Chuck) Schumer (D-NY) told MSNBC that the decision was up to Roberts. ‘The Constitution says the chief justice presides for a sitting president. So it was up to John Roberts whether he wanted to preside with a president who is no longer sitting, Trump, and he doesn’t want to do it,’ Schumer said.”
Then who will preside at this impeachment trial? “Senate President Pro Tempore Patrick Leahy (D-Vt.), the most senior member of the Senate Democratic Conference, will preside over the trial. Leahy on Monday confirmed he would wield the gavel and promised to administer ‘impartial justice.’ ‘The president pro tempore has historically presided over Senate impeachment trials of non-presidents,’ he said in a statement.
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To compound the “through the looking glass” insanity of this appointment, Leahy will not only serve as judge of the impeachment trial – he will also be sworn in as a juror, along with the rest of the Senate.
Luckily, some Senators have shown some sense under these circumstances. “Sen. Rand Paul said he will force senators to vote…over the constitutionality of holding an impeachment trial for a former president, which he thinks will prove the futility of Democrats proceeding with the effort.” According to the Washington Times, “’I think it’ll be enough to show that…more than a third of the Senate thinks that the whole proceeding is unconstitutional…’ Mr. Paul told reporters.”
Though Senator Paul’s Point of Order did not succeed, as the senator stated in a Tweet, “45 Senators agreed that this sham of a ‘trial’ is unconstitutional. That is more than will be needed to acquit and to eventually end this partisan impeachment process. This ‘trial’ is dead on arrival in the Senate.”
Indeed, Senator Paul and 45 of his colleagues are not the only ones to consider this process invalid and unconstitutional. According to Brian Darling in Townhall, “The argument against trying Donald J. Trump in the Senate is short and simple. The Constitution forbids an impeachment trial of a private citizen by the U.S. Senate.
“Our Founders did not permit ‘former presidents’ to be subject to impeachment trials. Article II, Section 4 of the Constitution states: ‘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.’ Seems like an open and shut case that a private citizen, who is a former president, can’t be the subject of a trial in the U.S. Senate.”
Thus, we have a rushed impeachment vote, without any hearings, evidence or witnesses, presented to a divided Senate, in which a senior Democratic Senator will act as both judge and juror. What could be unfair about this?
It is worth noting that the only other time the Senate tried to impeach a private citizen was 1876. William Belknap was accused of “’criminally disregard(ing) his duty as Secretary of War, and basely prostitut(ing) his high office to his lust for private gain.’ A majority of the senators voted to convict Belknap for his crimes, but they failed to reach the two-thirds majority required, so he won acquittal.”
We can expect the same result here.
Illustration: Pixabay