GURVICH: Impeachment, Revisited

Last week I wrote an article in The Hayride as the second impeachment trial of former President Donald J. Trump got underway. In the article I made the common-sense argument that impeachment should remain a rarely invoked procedure reserved for the gravest offenses.

Allow me to return to the subject of impeachment to add to my concerns about this now concluded travesty of justice, by quoting in its entirety Art. II, Sec. 4 of the Constitution: “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.”

That is the exact wording of the relevant section of our Constitution, and that is exactly what I and tens of millions of other school kids were taught in Civics class these last two hundred plus years. Impeachment is about the removal of a federal civil official from office. As is clearly evident, the Constitution carefully delineates who may be impeached in very specific terms, and it says nothing whatsoever about the impeachment of former officials.

Some earlier state constitutions did indeed allow for the impeachment of former officials, which procedure is sometimes referred to as a “late impeachment.” Therefore the omission of “former officials” from the U. S. Constitution’s impeachment provision was no oversight on the part of the Founding Fathers, many of whom had been involved in the drafting of these earlier state constitutions. Clearly, they wanted nothing to do with the hounding of former officials after they had left office.

Continuing with my analysis, under the Constitution only the Senate has the power to try impeachments, and the Senate is specifically limited as to what action it may take at the conclusion of the trial. Let’s again look at the actual wording of this most sacred American document: Per Art. I, Sec. 3, which I here quote in part: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and (my italics) disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States…”

Note the use of the conjunction “and”, instead of the use of the conjunction “or”. “Or” is used in standard English in this context to link alternatives. It is therefore clear that these two clauses in the same sentence were not intended to be read as alternative punishments- “and” in this context indicates that the two linked clauses were to be read jointly.

We therefore arrive at the obvious conclusion: The Senate may impeach, convict and thereby remove a federal civil official from office. The Senate may then also preclude the convicted individual from holding future office. What the Senate cannot do is to impeach, acquit, and then preclude that individual from holding future office. It logically follows that if an official cannot be removed from office because he has already left office, the entire proceeding has become a waste of time, or as a court of law would say, the proceeding has become moot and should be dismissed.

As for the timeline of what should be a grave and carefully weighed proceeding, the sole article of impeachment, for incitement of insurrection, was introduced into the House on January 11, 2021 and hastily passed all of two days later! Not only was the article passed in undue haste, it was poorly drafted by an intensely partisan crowd of Democrat congressmen. Nor can we omit to mention that the article of impeachment was passed before an official investigation into the events of January 6, 2021 could begin, and even before a barebones preliminary investigation could be completed. In fact, the House gleefully relied on shamefully biased news reports to make its decision to initiate impeachment proceedings.

But there is more: As of January 13th, Donald Trump was still the President of the United States, but by the time the article of impeachment was presented to the Senate on January 25, 2021, he was a private citizen residing in Florida. To further muddy the waters, the Chief Justice of the United States Supreme Court declined to preside over the trial on the unsettled rationale that he could only be required to preside over the trial of a sitting president. This unseemly development ensured that the trial would be presided over by a highly partisan Democrat, either Vice President/President of the Senate Kamala Harris, or, as turned out to be the case, President pro tempore of the Senate Patrick Leahy. Both had publicly announced that former President Trump was guilty well before the trial had begun.

So if private citizen Donald Trump was residing peacefully in Florida on January 25th as the article of impeachment was introduced into the Senate, and impeachment was never intended to apply to former federal officials, then the impeachment article should have been dismissed as moot as soon as it was introduced. Citizen Trump was no longer the president, hence he could not be convicted; hence he could not be precluded from holding future office. Senator Rand Paul made a point of order to dismiss the article, but his motion was voted down along mostly partisan lines, although five Republican senators voted with the Democrats.

By now you should certainly be offended by the obvious defects in this proceeding: a hastily and poorly drafted article of impeachment, filed by a partisan mob in a big hurry with an axe to grind against a President with all of one week left to serve in office, and a hastily convened trial presided over by a publicly hostile juror. The fundamental unfairness of the proceeding should be obvious, but it gets worse, much worse in fact: The majority decision of the Senate to proceed with the impeachment of a private citizen itself turned the entire proceeding into a violation of the Constitution.

The left-wing media would have you believe that the weight of legal precedent allowed for late impeachment, but this is not so. There have been all of two previous instances wherein lower ranking federal officials were impeached after leaving office, the last time almost one hundred and fifty years ago. In the meantime there have been far weightier cases wherein a late impeachment was pointedly not pursued, when under the Democrats’ current legal theory it certainly could have been.

Legal scholars such as Alan Dershowitz, Jonathan Turley, and many others agree that this impeachment proceeding was so flawed in so many respects as to be unconstitutional and a violation of due process. But there is yet one more reason why a partisan House mob should never have even attempted to impeach and convict a former president, which reason I discussed in my previous article:

“But to return to the impeachments, consider the question not only of their lack of substance, but of their recent frequency. Democrats will of course blame Donald Trump for their filing of three impeachment articles in such a short space of time, but rest assured that they will do the same to any future president with whom they viscerally disagree. Allow me to put the present situation into perspective: Forty percent of all the impeachment proceedings ever launched against sitting (and now former) presidents in all of American history have been brought in the last thirteen months!”

“If impeachments and impeachment trials are to become a routine part of our political future, then surely the independence of our executive branch of government is now also under threat. Shall a mere majority of House seats determine whether or not a proceeding as grave as impeachment be launched for purely political purposes? Shall America risk a never-ending series of brutal impeachments, each one further damaging whatever is left of our political consensus? Shall we destroy the one form of democracy which has given this huge and disparate country a stable form of government?”

The second impeachment trial of Donald Trump, like the first, was a mistake from the beginning, and the longer it staggered on, the more fatally defective it became. Let us never hope that this miscarriage of justice becomes a precedent for anything, other than as a perfect example of why this proceeding should be so rarely invoked!

R.I.P. Impeachment, at least for awhile…

Louis Gurvich
LAGOP Chairman

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