The Democrats have again shown themselves to be a powerful political force, but whose community of “thinkers” is small and outclassed. They had the forethought to determine for themselves that former President Trump was eligible to be impeached, but failed to consider whether he was constitutionally eligible to be convicted. Nothing in their presentation indicates they gave serious thought to the later.
The Trump lawyers were I thought going to fall into the same trap. Nothing worthwhile was offered on the only question that mattered. Was a former President eligible to be convicted? I searched the daily papers to see if this narrow piece of impeachment ground was recognized. The facts for grounds for conviction were both undeniable and never-to-be forgotten in their impact. On the other hand, the case requires constitutionality for sentencing; what is a conviction worth if the sentence can’t be administered? Yes or no! Maybe, but just maybe it can qualify prohibiting the convicted person from future office-holding, if convicted first.
I wrote a previous essay that gave the only conclusion I was able to divine, and it was clear enough to me to be to say to all of my readers. When the Constitution says the “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. (Article I, Section 3, Clause 7)
Trump’s second lawyer to speak was David Shoen, who offered a full-throated defense against both impeachment, and conviction. Most persuasive was that in case of conviction (a necessary precedent to judgment), the judgment shall not extend further than removal from Office, and secondarily disqualification to hold future office…. It is a fact that at the time of the trial, it is former President Trump who is referred to in the above-cited Article of the Constitution. This leads to the argument that since Former President Trump cannot be removed from office, a judgment can’t be applied. A conviction is inappropriate because the plain words of the Constitution do not pertain to the former president. Almost as if the Founders saw the issue, the Constitution goes on to supply an alternative remedy so that a guilty Former President does not go without penalty. The same above-cited Article I goes on to state: [B]ut the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law. This addition indicates that contrary to double-jeopardy, the conviction for an impeachable offense does not end even the convicted person’s woes. Presidents Nixon and Clinton were both subject to subpoenas for evidence in a federal criminal trial, and in Clinton’s case the trial occurred in Clinton v. Jones(1977).
There is perhaps an unintended consequence that has not yet been investigated. High crimes, misdemeanors, bribery and treason are but suggestions for guidance to the House of Representatives in passing an impeachable offense – but their purpose disclosed from Constitutional debates was to suggest importance and exclude mere politics. Politics is a blood sport in America, and its speech is Constitutional protected to be voiced and to be heard. The obvious test of an ‘impeachable offense” is, it is accepted by the Senate, and brought to trial. Beyond that are alternatives, but currently uninformed. Can the Senate make a rule to accept for trial an impeachment of a former official? Probably yes, but barring ex post facto. Or since the Senate is a legislative body probably no, if the rule is equivalent to a Bill of Attainder. The most immediate action is a criminal referral to the FBI, and follows the procedures in the Justice Department thereafter. Does this process takes the Constitution out of the question, as this route is no longer an “impeachment” but “civil” (I doubt it is applicable because he is not being sued as the President.) I cannot help but think that this will be fodder for House and Senate leaders to put their heads together over the weekend and determine mutual safe ground. Still, the Senate cannot convict and pass a sentence which is constitutionally acceptable. As things now stand, Trump, if convicted, still can’t be sentenced as the person described in Article I, Section 3, Clause 7 who is subject to judgment. The person to be sentenced is only the president in-office, and no one else.
An impeached and convicted person has no appeal, and likewise neither can Congress appeal an action of the other branch of Congress.
Publiustoo.com February 10, 2021