A team of top-flight legal experts, the lawyers at the American Center for Law and Justice, has delivered to the government a a legal analysis urging the Senate to reject Democrats’ demands for an impeachment trial for former President Trump.
Or risk turning itself into a “kangaroo court.”
Senate Democrats are trying Trump on one count of incitement of insurrection. House Speaker Nancy Pelosi, D-Calif., moved the charge to a vote after only two hours of debate, with no witnesses or presentation of evidence..
The ACLJ contends the trial is unconstitutional.
“There is nothing in the Constitution that provides for this, and in fact, several sections of the Constitution would preclude this trial from taking place. Yet, the radical Left – including Senate Majority Leader Chuck Schumer and House Impeachment Managers like Representatives Eric Swalwell (the subject of our recent FOIA lawsuit regarding his connection to a Chinese spy), Ted Lieu, and lead Manager Jamie Raskin – are willfully ignoring the Constitution itself in pursuit of a political show trial,” the organization said.
“It’s a charade that threatens to turn the world’s greatest deliberative body – the United States Senate – into nothing better than a kangaroo court.”
The chief justice of the Supreme Court will not preside over the trial, even though that is required by the Constitution. The Democrats have decided one of their own, a senator who has promoted the impeachment of the president, should be the presiding officer.
Further, the Constitution allows for the impeachment of a president but not a former president.
The ACLJ also argues a private citizen cannot be impeached. That would amount to an unconstitutional “bill of attainder,” a legislature declaring a person guilty of a crime without a trial and punishing him.
The ACLJ analysis pointed out that “the accused is not the president.”
“The text of the United States Constitution therefore does not vest the Senate with the power to try a private citizen and remove him (a factual nullity) or disqualify him (a legal nullity) as if he was ‘the president,'” the ACLJ said.
“The primary and, in fact, the only required remedy of a conviction is removal. Justice [Antonin] Scalia put it thusly during the oral argument of the Judge Nixon case: ‘I assume the removal is automatic. The Senate doesn’t do the removal. It occurs by virtue of the Constitution.’ Solicitor General Kenneth Starr agreed: ‘I think that is right, because the judgment is what removes.‘ If removal is automatic, by virtue of the Constitution itself, a trial where that removal cannot occur is not a trial grounded in the constitutional framework,'” the organization explained.
Democrats, in fact, have admitted that their aim is to ban Trump from ever running for office again.
And, the legal analysis explained, while the British form of government provided for late impeachment, and some states adopted that provision, the Constitution did not.
“The Framers were aware of the practice and, unlike the states that expressly allowed it, they chose not to accept late impeachment.”
In a preliminary vote, 45 senators supported a resolution declaring the trial unconstitutional, meaning the Democrats likely will not garner the 17 Republican votes they would need to convict.
The ACLJ said Trump also was not afforded due process during Pelosi’s “snap” impeachment.
“The Senate only has jurisdiction over the sitting president, and then only to address questions of potential removal and disqualification, remedies which only apply to a current officeholder,” the brief explains. “The fact that the Senate lacks the constitutional jurisdiction to try this impeachment against a private United States citizen is further evidenced by the very fact that the chief justice of the United States has refused to preside. The maneuvering that occurred in the House was unprecedented and unconstitutional.”
While the brief was directed to the Senate, the ACLJ also wants the public to see it.
“We also believe that every American should understand not only the unconstitutionality of this trial but also the implications for the future of our democratic republic.”
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