The Impeachment Trial’s Stacked Deck By John Yoo & Robert Delahunty
https://www.nationalreview.com/2021/02/the-impeachment-trials-stacked-deck/
EXCERPTS:
Trump should receive a fair chance to present the facts and legal arguments of his defense.
A s the Senate launches its second impeachment trial of Donald Trump next week, its members must confront the deep unfairness of the proceedings.
The Senate rashly claimed jurisdiction over a former president, fumbled on the selection of a presiding judge, and ignored the constitutional — not political — standards that should prevail. Further, it has given Trump’s depleted legal team little time or means to present a full defense — the only guarantee that the American people will accept the verdict as fair. Trump’s lawyers will have to accept these unfair conditions, though might conceivably be able to appeal directly to the federal courts to stop a show trial (more on that later).
Nevertheless, the Senate has ignored the constitutional limits on its powers and refused to follow principles of fairness in the trial. As we have argued earlier, the constitutional text — read in light of the understanding held by the Framers — does not appear to permit the trial of executive officers after their terms have ended. If the Framers had wanted to provide for the Senate trial of an impeached former president, they could have said so explicitly, as did several state constitutions of the Founding period. Days ago, 45 senators supported proceeding with a losing motion by Senator Rand Paul (R., Ky.) to dismiss the impeachment on this constitutional ground alone.
But a Senate trial compounds this fundamental problem by placing Senator Patrick Leahy (D., Vt.) in charge of the proceedings, rather than Chief Justice John Roberts. The Constitution states that the chief justice “shall” preside over the trial of the president. But Donald Trump is no longer the president. Roberts could not preside because no constitutional clause clearly provides for the trial of an ex-president.
So if Trump’s Senate trial is not the trial of the president, then what is it? It is also not the trial of a civil “officer” of the United States: Trump is now a private citizen. Roberts’s decision not to preside indirectly casts further doubt on the legitimacy of a Senate trial.
Even if the Constitution permits the trial of ex-officials, however, the responsibility for presiding would normally fall upon the president of the Senate. By the constitutional rule, this is Vice President Kamala Harris. But she has chosen not to preside. Has Harris recused herself because she is so biased against Trump that no reasonable observer could consider her a fair judge? Would it look too crass for Harris to be presiding over the attempted disqualification of a potential rival to Biden — or herself — for the presidency in 2024?
Harris’s no-show has led to the choice of Leahy, as president pro tempore of the Senate, to preside. With Leahy in the chair, and therefore unable to vote for Trump’s conviction, how many Senate votes would be required to convict Trump? The Constitution specifies that conviction requires the affirmative vote of two-thirds of the “members” “present.” If all 100 senators attend the trial, will that figure be 67 or — because Leahy is presiding — 66? If the latter, then Harris’s absence has lowered the threshold for convicting Trump.
We think that recourse to the plain text of the Constitution should decide the question. Leahy is a “member” of the Senate, and, if only to preside, he is necessarily “present.” So to meet the two-thirds requirement, 67 votes will be needed (if all senators are there). If Trump is “convicted” by 66 of 100 senators present, that “conviction” should not stand.
Yet a third problem infects the Senate trial with unfairness. The Senate decided barely two weeks ago to reject the challenge to its jurisdiction and proceed to trial. It has demanded that Trump put on a defense with less than a month to prepare, and it reportedly has limited his lawyers to only one week of time on the Senate floor. Trump needs far more time in order to cure the defects of the House impeachment proceedings and should receive a fair chance to present the facts and legal arguments of his defense.
Unlike the first impeachment of 2019–20, the House conducted virtually no fact-finding in its rush to indict Trump. Article I gives the House “the sole Power of Impeachment” and the right to “determine the Rules of its Proceedings.” It does not place any limits on the power. Because of this sparse text, the House may run its impeachment inquiry as it wishes. In 1868, the House voted to impeach President Andrew Johnson only three days after he fired the secretary of war without congressional consent (violating a law that was surely unconstitutional). If the Watergate or Whitewater hearings provided presidents with any rights, they came as a matter of legislative grace, not constitutional right.
But the lack of House investigation requires the Senate to discover the facts. And the facts about the Capitol Hill riot and its origins are still emerging, even though many of the shocking scenes played out in full public view. Trump can claim that his legal team has had virtually no time to interview witnesses and gather evidence — such as whether the attack on the Capitol had started before Trump finished speaking at the Ellipse on January 6, whether outside groups had planned the riots in an uncoordinated fashion, whether Trump’s language called for violence, and whether Trump knew there was a strong likelihood of violence. Trump’s lawyers have also had little time to research and develop constitutional arguments over whether impeachment applies to ex-officials. Or is the Senate going to say, in Alice in Wonderland fashion, “First the sentence, then the evidence”?
If Senate Democrats seriously seek to disqualify the former president from office, they should grant Trump more rights. Holding a vote to proceed to trial has only symbolic value. The real benefits must come in its day-to-day conduct. Democrats should give the Trump team the time to prepare and present witnesses and evidence. Provide all witnesses with the right to counsel, recognize valid privileges rooted in the Constitution, and allow the Trump team to cross-examine and test the House’s evidence, such as it is.
Like any American subject to criminal trial, Trump deserves a full and fair opportunity to be heard. An accused carjacker would get as much. So should an ex-president. A defendant’s right to confront his or her accusers traces its origins to the very beginnings of Western civilization. In a 1988 case, Justice Scalia quoted St. Paul in Acts 25:16: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges.” Surely Senate Democrats can do better than the Romans of Pontius Pilate’s days.
As it stands now, standard Senate proceedings cannot make up for the defects of the House impeachment. Under the existing rules, the Senate holds only a pale imitation of a trial. Individual senators cannot speak, question witnesses, or test evidence. Senators put questions to the legal teams through the chief justice. House managers present their case in speeches, the president’s lawyers make closing statements, and the senators vote. Treating senators as silent jurors, a Senate trial creates no forum for the testing of the witnesses or the evidence.
Decisions by the Democratic Senate to deny Trump these basic elements of fairness do not end the matter. National Review’s Andrew McCarthy among others has rightly responded that in Nixon v. United States (1993), the Supreme Court declared that the Senate trial of an impeachment is a “political question” that deprives the judiciary of review. But read carefully, Nixon — in which a judge challenged the Senate’s delegation of the trial to a committee — still allows Trump to attack the Senate proceedings in court. As Chief Justice William Rehnquist emphasized, the justices could not review Nixon’s trial because the Constitution gave to the Senate, rather than the courts, the “sole” power to try impeachments. Furthermore, he observed, the word “try” did not provide any “judicially manageable standard of review of the Senate’s actions.”
Senate jurisdiction over impeachment, however, does not fall within Nixon’s scope. Nixon forbids courts from reviewing the how of trying an impeachment, but it cannot prohibit them from reviewing the who. Consider this hypothetical. Suppose the House and Senate were to impeach a defendant who had never entered public service. Perhaps a future Republican Congress believes that George Soros has done great harm to the nation by supporting extremist progressive groups. Both sides of the debate over the Trump trial should agree that the Constitution does not authorize the impeachment of private citizens. The Supreme Court not only could but should review whether Congress has the jurisdiction over a Soros impeachment, just as it has ordered states or the executive branch to release suspects held without legal basis.
Indeed, we think that Trump could halt the impeachment trial in its tracks by filing a writ of habeas corpus directly with the Supreme Court, which has reserved the ability to free defendants in such extraordinary cases. In Felker v. Turpin (1996), the Court observed that it could entertain habeas corpus petitions brought to it directly under the Constitution, even though most pleas for release come first to federal trial courts as challenges to state convictions.
It should also be clear that the Nixon Court’s finding that impeachment poses a “political question” outside judicial review does not mean that the Senate is free to decide jurisdiction and due-process questions on political grounds. The Constitution still applies to the president and Congress, who have their own obligations to obey, interpret, and enforce the Constitution. Even though the Senate may have the discretion to decide for itself how to try an impeachment, it must still obey constitutional principle, rather than operating on arbitrary, partisan, or even random grounds (such as by just flipping a coin).
As for the coming trial, the Senate should bend over backwards to treat Trump fairly, not because the Constitution requires it, but because due process will give the public greater faith in the verdict. Giving Trump time to test the Senate’s jurisdiction in the Supreme Court, and then allowing Trump to present witnesses and test evidence, will give the nation the confidence that impeachment has survived the same standards as any criminal conviction. Otherwise, the impeachment trial will look truly political, in the basest rather than the highest sense, and only allow Trump to claim vindication against a rigged system.
Impeachment then would have had the unintended consequence of providing a forum for the recovery, rather than the humiliation, of a vanquished foe.
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