In the Senate impeachment trial of President Donald Trump, ostensibly for "abuse of power" (Impeachment Article 1) and "obstruction of Congress" (Impeachment Article 2), one thing is beyond dispute: neither impeachment article even alleges a "high Crime" or "Misdemeanor."
In my last article, I suggested that the entire impeachment could be dismissed as a matter of law, without reaching the merits, based on this unconstitutional defect in drafting. For reasons explained below — regardless of whether the Senate dismisses one or both Articles — the Senate should declare the impeachment a nullity in order to prevent this blatant violation of the Constitution from ever happening again.
My prior article concluded that the impeachment articles approved by House Democrats are a partisan "bill of attainder and an ex post facto law, rolled into one," quoting the 1974 Impeachment Handbook authored by Yale Professor of Jurisprudence Charles Black.
According to Professor Black’s Impeachment Handbook, "The parliamentary bill of attainder . . . made past conduct of the person attainted criminal, and imposed punishment for it, without judicial trial and without any necessary reference to prior law or to his offense’s being a crime under that prior law. The Framers of our Constitution looked on this procedure with such abhorrence that they prohibited its use not only by Congress but even by the states."
The U.S. Constitution provides that, "No Bill of Attainder or ex post facto Law shall be passed" (Art. I, §9), and that, "No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts” (Art. I, §10).
Sir William Blackstone in his 1765 "Commentaries on the Laws of England' explained what ex post facto means: "when after an action is committed, the legislator then for the first time declares it to have been a crime." This method of legislation, Blackstone explained, is even worse than the methods of Roman Emperor "Caligula, who (according to Dio Cassius) wrote his laws in very small character, and hung them up upon high pillars, the more effectually to ensnare the people."
In the impeachment articles transmitted to the Senate on Jan. 15, 2020, Speaker of the House Nancy Pelosi, without one Republican vote, "then for the first time declares [what President Trump allegedly did] to have been a crime."
Here is how the Senate could and should declare the two impeachment articles transmitted to the Senate on January 15, 2020, as "no impeachment at all" — whether or not the Senate dismisses one or both of the "Articles of Impeachment" so that neither President Trump nor any future president is subject to such a blatantly unconstitutional impeachment attempt:
In a lawsuit last century challenging a "Bill for raising Revenue" that originated in the Senate, contrary to the Constitution’s requirement that, "All Bills for raising Revenue shall originate in the House of Representatives” (Art. I, §7), the judicial opinion began: "That an unconstitutional statute is not a law at all is a proposition no longer open to discussion." That opinion of Judge Charles Hough of the U.S. District Court for the Southern District of New York, "assumed that a revenue bill of Senate origin was a nullity," and concluded, "The Cotton Futures Act is not, and never was, a law of the United States. It is one of those legislative projects which, to be a law, must originate in the lower house." Hubbard v. Lowe, 226 F. 135, 140-41 (S.D.N.Y. 1915), appeal dismissed, 242 U.S. 654 (1916).
Likewise, the Senate should declare as "a nullity" any impeachment article that does not even allege a violation of what the Constitution requires for impeachment. To paraphrase Judge Hough in Hubbard v. Lowe, the Senate should formally formally that the impeachment of President Trump "is not, and never was, a[n impeachment]. It is one of those legislative projects which, to be a[n impeachment], must [allege 'Treason, Bribery, or other high Crimes and Misdemeanors' (Art. II, §4)]."
In the case of Hubbard v. Lowe, the Supreme Court dismissed the case as moot after the House of Representative introduced, and Congress enacted, essentially the same Cotton Futures Act that impermissibly had originated the first time in the Senate.
Regardless of whether the Senate votes to dismiss or to find President Trump "not guilty," by the Senate declaring that the two House "Articles of Impeachment" are a nullity, the Senate will hold the House Democrats accountable for a blatantly unconstitutional "bill of attainder and an ex post facto law, rolled into one."
By so nullifying the Articles of Impeachment, the Senate will have done its best to avoid an unconstitutional and dangerous precedent. To quote President Trump’s tweet on Dec. 18, 2019, the day the House voted to impeach: "This should never happen to another President again. Say a PRAYER!"
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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