Regardless of how senators vote on impeachment, President Trump should sue Rep. Adam Schiff, D-Calif., and his co-conspirators, including the so-called "whistleblower" and the inspector general who in August 2019 "determined that the Complainant has reported an 'urgent concern' that 'appears credible'," seeking declaratory judgments that:
- The House "Articles of Impeachment" are unconstitutional as a matter of law;
- Like any statute of unconstitutional origin, this impeachment is a nullity; and
- Rep. Adam Schiff and his co-conspirators violated the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, through which Congress provided that any person injured or deprived of civil rights by a conspiracy of two or more persons "may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
My last article explains why, regardless of how senators vote on impeachment, the House "Articles of Impeachment" are a blatantly unconstitutional "bill of attainder and an ex post facto law, rolled into one," quoting "Impeachment: A Handbook," by Yale Professor of Jurisprudence Charles Black.
The reason it is important for a court to declare the Trump impeachment a nullity is so that honest historians forever acknowledge that the impeachment, to quote the last federal judge to strike down a tax bill that unconstitutionally originated in the Senate (contrary to Article I, Section 7), like "a revenue bill of Senate origin was a nullity . . . . It is one of those legislative projects which, to be a[n impeachment], must originate [constitutionally] in the lower house." Hubbard v. Lowe, 226 F. 135, 140-41 (S.D.N.Y. 1915), appeal dismissed, 242 U.S. 654 (1916).
Regarding the KKK Act declaratory judgment suggested above, according to a Feb. 2, 2020, Washington Examiner article, "Republicans have accused House Intelligence Committee Chairman Adam Schiff, who is now the lead impeachment manager, of being 'complicit' with the whistleblower because the person met with a House Intelligence Committee aide seeking guidance before filing the complaint and because the California Democrat recruited two former National Security Council aides who worked alongside the CIA official some believe to be the whistleblower at the NSC in the Obama and Trump administrations."
Being "complicit" is another way of saying that Adam Schiff conspired.
In another article, I explained the complicity of intelligence community inspector general (ICIG) Michael Atkinson, concluding that, "If I had been the ICIG, I would have admonished my staff not to hold anybody else accountable to the standard alleged by the 'whistleblower' — because that would be a Caligula-esque method of enforcing laws. It’s not part of the American system of transparent and accountable government," built upon fundamental principles of due process and fairness.
The complicity between and among the Adam Schiff co-conspirators amounts to Adam Schiff abusing his power as Chairman of the House Intelligence Committee, to "conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws," in violation of the Ku Klux Klan Act, which is now codified at Title 42 of United States Code, Section 1985 ("Conspiracy to interfere with civil rights").
The U.S. Supreme Court recently described the type of complicity between and among Schiff co-conspirators, some of which is already known, as a statutory basis for civil "liability on two or more persons who 'conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.' § 1985(3).” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017).
Although the Court in Zigler ruled that the federal official petitioners in that case "are entitled to qualified immunity with respect to the claims under 42 U.S.C. § 1985(3)," the following two-prong reasoning in Zigler would not apply in a lawsuit by President Trump against the Schiff co-conspirators: "First, the conspiracy recited in the complaint is alleged to have been between or among officers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice). Second, the discussions were the preface to, and the outline of, a general and far-reaching policy." 137 S. Ct. at 1867.
As Sen. Lindsey Graham, R-S.C., said on Feb. 2, 2020, "If the whistleblower was working with people on Schiff’s staff that wanted to take Trump down a year-and-a-half ago, I think that would be important. If the Schiff staff people helped write the complaint, that would be important. We’re going to get to the bottom of all of this to make sure this never happens again."
Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’" Read more reports from Joseph E. Schmitz — Click Here Now.
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