Today, the Senate is scheduled to begin the trial phase of the despicable persecution of
Citizen Donald J. Trump. In response to the Article of Impeachment rammed through the House without any due process and the Democrat Impeachment Managers trial memorandum, former President Trump’s legal counsel have submitted their own trial memorandum outlining their defense of the former President.
At 78 pages we can’t post the memo in its entirety here, but you can read the whole document through this link.
We think there are two crucial points made in the memo that are worth posting and remarking on here in advance of the Senate trial. The first, is the discussion of the unconstitutional nature of the proceedings; the second is the outrageous premise that the Constitution does not apply to the impeachment proceedings.
As former President Trump’s counsel explained, in this instance the Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds.
To explain why this is unconstitutional we quote the memo:
An impeachment trial of Mr. Trump held before the Senate would be nothing more nor less than the trial of a private citizen by a legislative body. An impeachment trial by the Senate of a private citizen violates Article I, Section 9 of the U.S. Constitution, which states that “[n]o bill of attainder . . . shall be passed.”
The Bill of Attainder, as this clause is known, prohibits Congress from enacting “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Simply put, “[a] bill of attainder is a legislative act which inflicts punishment without a judicial trial.” “The distinguishing characteristic of a bill of attainder is the substitution of legislative determination of guilt and legislative imposition of punishment for judicial finding and sentence.” (emphasis by CHQ)
“[The Bill of Attainder Clause], and the separation of powers doctrine generally, reflect the Framers’ concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of power.” As the Supreme Court explained in United States v. Brown, “[t]he best available evidence, the writings of the architects of our constitutional system, indicate that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.” The Bill of Attainder “reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries. . . “
When the Senate undertakes an impeachment trial of a private citizen, it is acting as a judge and jury rather than a legislative body. And this is exactly the type of situation that the Bill of Attainder was meant to preclude. It is clear that disqualification from holding future office is a kind of punishment that is subject to the constitutional inhibition against the passage of bills of attainder, under which general designation bills of pains and penalties are included; in Cummings, Ex parte Garland, and Brown, the Supreme Court thrice struck down provisions that precluded support of the South or support of Communism from holding certain jobs as being in violation of this prohibition. Thus the impeachment of a private citizen in order to disqualify them from holding office is an unconstitutional act constituting a Bill of Attainder.
Moreover, this is the exact type of situation in which the fear would be great that some members of the Senate might be susceptible to acting in the haste the House did when it rushed through the Article of Impeachment in less than 48 hours, i.e., acting hastily simply to appease the popular clamor of their political base. As Chief Justice Marshall warned in Fletcher v. Peck,
[I]t is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment; and the constitution of the United States contains what may be deemed a bill of rights for the people of each state. No state shall pass any bill of attainder. In this form the power of the legislature over the lives and fortunes of individuals is expressly restrained.
If there was ever a case the met the four corners of the Framers of the Constitution’s fear of that the legislature’s power over the lives and fortunes of individuals needed to be expressly restrained it is this one.
The second issue we think conservatives should hold front and center during this second Senate impeachment trial of Donald Trump is the Democrats’ astonishing claim that the First Amendment, and presumably all other parts of the Constitution, do not apply to impeachment.
We touch on this in another article in today’s CHQ, but the Trump trial memo bears quoting at length to explain just what an astonishing and frightening claim Democrats are making – in the words of the memo, the right to impeach without any constitutional guardrails:
The House Managers’ Trial Memorandum expressly advocates for the Senate to disregard First Amendment principles, stating “the First Amendment does not apply at all to an impeachment proceeding.” In doing so, the House Managers shockingly invite Senators to violate their own oaths to uphold the Constitution and the bedrock principle—established over two hundred years ago—that the Supreme Court is the final arbiter of whether Congressional acts are consistent with the Constitution. There is no actual precedent for this confounding precept offered in the House Managers’ Brief—the Managers astonishingly cite to a few recent internet blogs.
The First Amendment is widely understood as prohibiting Congress from “abridging the freedom of speech; or the right of people peaceably to assemble” in all aspects of state action in all three branches of government. Congress may not take action that would “abridge the freedom of speech.” Indeed, Senators take an Oath of Office, which includes an oath to “support and defend the Constitution of the United States . . . .”
The Constitution, of course, includes the Bill of Rights, including the First Amendment. This means, inevitably, that Senators cannot do what the House Managers urge: the Senate cannot blithely cast aside the First Amendment and the Supreme Court’s long-established Free Speech jurisprudence when passing judgment on articles of impeachment.
The Constitution must, at a minimum, serve as a limitation on the ability of Congress to impeach for “high crimes and misdemeanors.” As noted by a Constitutional scholar a few years ago, if that were not the case, there would be a host of internal contradictions within the Constitution that could not have been intended by the Framers:
Additional negative restrictions would also extend from the panoply of protections in the Bill of Rights. For example, an officer could not be removed from office for refusing to self-incriminate (Fifth Amendment) or seeking the assistance of counsel in a criminal prosecution (Sixth Amendment). Whatever “high crimes and Misdemeanors” means, it cannot include conduct that is itself protected by the Constitution; such would be an internal contradiction. Or, to frame it in modern doctrine, it would amount to an unconstitutional condition: punishing a person for exercising a right protected by the Constitution.
The position advanced by the House Managers is essentially an impeachment standard without Constitutional guardrails, unmoored to any specific legal test other than the unbridled whims of the House Managers.
And that is indeed what has happened in both Trump impeachments – impeachment at the unbridled political whims of the majority party in the House of Representatives. Call the toll-free Capitol switchboard (1-866-220-0044), tell Senators you oppose the unconstitutional and unjustified impeachment of former President Donald Trump. Tell them to vote to acquit Mr. Trump in this partisan impeachment unmoored to the Constitution.
incitement of insurrection
ex post facto laws
bills of attainder