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Mr. Trump Can Run But Not Hide

By       (Page 1 of 2 pages)   1 comment
Follow Me on Twitter     Message Neal Herrick

There are sev eral questionable beliefs and one legal fact that, taken together with the First Amendment to the Constitution, make it possible that Mr. Trump will be our first "removed and disqualified" president. This event, if it should occur, would almost certainly strengthen our democracy and revive our positive international reputation.

The first questionable belief

This belief can be found in the following line from legal scholar Michael J. Gerhardt's article in the January 17, 2020, Washington Post. He writes "The Framers intended our impeachments to be political." It would be more accurate, in this citizen's opinion, to say, "The Framers intended our impeachments to be impartial." James Madison, sometimes called the "Father" of our Constitution, wrote on October 15, 1788, "The great desiderata on a Court of Impeachment are 1. Impartiality and 2. Respectability." An impeachment, of course, cannot be both political and impartial. This is important because it may become a decisive point in our post-trial judicial-review proceedings.

The second questionable belief

This belief is that the impeachability of the charges brought against Mr. Trump remains to be decided. This matter was decided when the House approved its two charges. As Hamilton wrote in Federalist 66 "The division of them" (the impeachment powers) "between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges ..." The only things that remains for the Senate to decide are (1) whether the defendant did or did not do the actions charged, and (2) whether he should be disqualified as well as removed.

The third questionable belief

This belief is that Mr. Trump is entitled to due process. Again we turn to the Federalist Papers for guidance. In Federalist 65, Hamilton points out the vast difference between the personal-security entitlements of private citizens protecting themselves from the loss of "life, liberty or property" for allegedly breaking the law and civil officers protecting themselves from loss of position for allegedly breaking their vows to the people's Constitution. Hamilton put it this way in Federalist 65: "This" (impeachment law) "can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security."

The fourth questionable belief

This questionable belief is that the Senate rule stripping the Chief Justice of the power to "preside" over presidential trials is constitutional. The Chief Justices in the Johnson and Clinton trial failed to "preside". Consequently, the results were political rather than impartial. Yet all the persons involved in these trials took an oath or affirmation to render impartial justice. Since the exercise of this power constitutes the people's main protection against partial trials, stripping the Chief Justice of his power (and duty) to exercise it during a presidential impeachment trial can hardly be constitutional.


A Concluding Fact

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Neal Herrick is author of the award-wining After Patrick Henry (2009). His most recent book is (2014) Reversing America’s Decline. He is a former sailor, soldier, auto worker, railroad worker, assistant college football coach, (more...)

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