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Nate Jackson / January 25, 2021

Myriad Problems With Post-Presidency Impeachment Trial

The trial is set for the week of February 8, but that’s just the beginning of the problems.

House Democrats certified their second impeachment farce a week before Donald Trump left the White House. Speaker Nancy Pelosi is sending the article to the Senate today, and the upper chamber has now scheduled the trial to begin the week of February 8, nearly three weeks after Trump left office.

“We all want to put this awful chapter in our nation’s history behind us,” Senate Majority Chuck Schumer opined. “But healing and unity will only come if there is truth and accountability. And that is what this trial will provide.”

We’d laugh if this wasn’t so serious. The Democrats’ idea of “unity” is actually acquiescence, and we’ll have none of it.

“The problem with impeachment,” muses Rich Lowry, “was that it seemed inevitable that it would either be so rushed that it would dispense with every traditional process and therefore lack legitimacy or that it would stretch beyond Trump’s time in office with no chance to convict and therefore lack legitimacy. And Congress being what it is, it’s actually turning out to be both!”

That’s true, but the problem is even more fundamental. First of all, in order to impeach and convict Trump, you’d have to strain credulity by taking his words — the only relevant words Democrats actually cite — exactly literally. And we don’t mean literally the way Joe Biden always uses the word, which is to say figuratively. “If you don’t fight like hell you’re not going to have a country anymore,” Trump said. Except politicians use “fight” all the time in a figurative sense. Moreover, some rioters reportedly planned their actions well in advance and were not spontaneously spurred to action by Trump’s “incitement.”

That doesn’t excuse his rhetoric, which we and numerous conservatives have condemned, but neither does it escalate to the level that hypocritical Democrats insist.

Second are the constitutional issues. House Democrats took the most mendacious and politicized route to impeachment they possibly could have. They rushed it through the House just to give Trump a swift kick on his way out the door, and now their Senate counterparts are doing violence to the Constitution in order to keep beating him up after he’s gone. Just not before getting to what they know is the more legitimate business of confirming Joe Biden’s Cabinet nominees.

Word is that Supreme Court Justice John Roberts won’t even preside over this sham trial, which only adds to the constitutional questions.

“First, we must ask whether the Senate even has the power to try this impeachment once the president is out of office. As a textual matter, the answer is no,” explains Richard Epstein. “Article I, Section 3, gives the sole power of impeachment to the Senate. First, a simple declarative sentence provides that ‘When the President of the United States is tried, the Chief Justice shall preside.’ The key word is ‘the’ as in ‘the President.’ The word ‘the’ is used instead of the word ‘a.’ ‘The’ has a definite reference to the president now sitting in office, which will be Joe Biden on January 20. Once Donald Trump is out of office, he cannot be tried under this provision.”

The same, Epstein notes, is true of Article II, Section 4, which reads: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” You cannot “remove” a president who is no longer president. And if they try, where does that precedent end?

As Senator John Cornyn put it, “This is about setting a new precedent and, as you know, once we do things around here and there is a precedent for it, then that’s the rule for the next time this happens.”

Then again, violating their oath “to support and defend” the Constitution is an old precedent for Democrats.

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