According to the Constitution, due process, and everyday legal practice, Donald Trump did not receive a fair trial in the Senate. And beyond that: What did the impeachment trial look like? According to the Supreme Court, “Justice must satisfy the appearance of justice” (Offut v. United States). So, what’s next for the courts under Democratic control of the federal government?
First, the Democratic brief filed in the Senate argued that the offense charged in the Article of Impeachment was a “political” not a criminal offense. It was not a “typical trial,” the Washington Post assured us. On the contrary, it was a “trial,” and it was a criminal trial. The Constitution (I,3) states that a president shall be “tried” in the Senate. In addition impeachment is about “high crimes and misdemeanors,” (I,4), with further examples given of the grave crimes of “treason” and “bribery,” that is, selling public office. These crimes are the only example of impeachable offenses given in the Constitution. The Article of Impeachment charged President Trump not only with a crime, but with the “high” crime of “incitement of insurrection,” an act inadequately comprehended as a “political” act. By comparison, Bill Clinton was impeached by the House for the crime of perjury. In his first impeachment, the House accused President Trump of being “a threat to national security,” that is essentially, of treason. Although it did not occur in a court and did not include the possible penalty of imprisonment, Mr. Trump’s second impeachment was a criminal trial in every important aspect and especially in its public “appearance.” So, what about criminal procedure? At least two principles of due process were directly violated: the right to an impartial judge and the right against self-incrimination.
Second, concerning a specific failure of due process, the Constitution provides that the Chief Justice of the Supreme Court “shall preside” when the President “is tried.” (I,3). That’s “shall.” The text provides no alternative. But Chief Justice Roberts refused to participate. By itself, that made the trial impossible under the Constitution. It also was a powerful and should-have-been definitive statement by a “separate and distinct” (according to Federalist No. 47) branch of government, whose required involvement in Senate impeachment trials is one of the numerous and necessary “checks and balances” in the Constitution.
Democratic Senator Leahy of Vermont, a member of the accusing party, “presided” and eventually voted to convict Mr. Trump. Thus, the “trial” of a historically unprecedented accusation against a former president had no impartial judge. As a comparison, there is a federal statute, 28 USC 455, that requires a federal judge to disqualify himself not only for actual “bias or prejudice” but even when “his impartiality might reasonably be questioned.” The previously cited Offut decision of the Supreme Court was a case that concerned the impartiality of the judge. Likewise, the Code of Conduct for United States Judges prescribes that a judge should “[a]void impropriety and the appearance of impropriety.”
Third, the Fifth Amendment guarantees a criminal defendant’s right not to be compelled “to be a witness against himself.” In every criminal jury trial of even the most minor significance in every city and county across the country everyday, the criminal defense attorney brings this right up in the pre-trial questioning of the jury panel and asks those subpoenaed for jury duty if they will give his client a fair trial even though the client may not testify. In the Senate’s impeachment trial, however, the chief Democratic prosecutor, Rep. Raskin, openly repudiated this principle. In a February 4 letter to Mr. Trump before the trial began, Mr. Raskin threatened:
If you decline this invitation, we reserve any and all rights [sic], including the right [sic] to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021.
Fourth, as for an additional improper “appearance” but one provided by the Constitution itself, Vice President Kamala Harris, in her authority to vote as President of the Senate in situations when the senators are “equally divided” (I, 3), had the power to decide all matters below the final two-thirds requirement for conviction. That is, in today’s rare circumstance of an everyday equal division of the Senate, the current executive branch had a possibly definitive role—not the rare and occasional role envisioned by the Founders—in the impeachment of the previous executive. And Ms. Harris’ historically unique status in the Senate will continue for the next four years.
Fifth, the attempt to “disqualify” Donald Trump failed to receive a two-thirds vote of approval, but more fundamentally, there was no constitutional authority for the impeachment of a former president. Impeachment is a procedure for “removal from office.” It is provided for in both Article I (the legislature) and Article II (the executive) of the Constitution. It has no precedent in English common law; the English “executive,” the monarch, could not be impeached and removed. “Disqualification” from future federal offices is provided for only in Article I (I,3). That Article describes “removal from Office, and disqualification.” It does not say “or” disqualification. The two penalties go together. Impeachment is discussed in eight of the 85 Federalist Papers. Nowhere in the Constitution or the Federalist Papers is disqualification mentioned as an autonomous proceeding and penalty. “The President of the United States is impeachable at any time during his continuance in office,” James Madison says in Federalist No. 39. But, according to what has just happened in the United States Senate, could Mr. Trump be “impeached” again?
Sixth, there can be no precise legal definition of “incitement” or “insurrection.” However, a world-wide popular understanding of “insurrection” is an organized and martial attempt to overthrow a government. In their hastily assembled Article of Impeachment, the Democrats retrieved the word “insurrection” from Clause 3 of the Fourteenth Amendment, which Clause forbids any office holder in the Southern states from ever again holding federal office. And, indeed, that Clause was the only place to find it, since the Civil War was the only “insurrection” in American history, even though the Southern states did not seek to overthrow the federal government. Now, the country faces a present and future in which the word “insurrection” will appear in the media and Democratic party talking points everyday.
The terrible criminal acts of January 6 at the U.S. Capitol had heavy symbolism but were not an insurrection. Indeed, no one but Donald Trump has been charged with insurrection. And the latest news of the investigation is that no firearms were taken into the Capitol. Almost all of the crimes at the Capitol could have been avoided if there had been better planning and more police officers. And that, by the way, is a good argument why the District of Columbia should not be a state.
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The featured image is a photograph of House Speaker Nancy Pelosi signing House Resolution 24 – Articles of Impeachment against President J. Trump following its passage by the House of Representatives (13 January 2021). This image is in the public domain and appears here courtesy of Wikimedia Commons.