Democracy is fragile. It’s like money. Our paper and metal currency only have any value at all because we agree that it does. Once people begin to question the value of their money, inflation ensues, and sometimes, “panic.” Likewise, Democracy means nothing if we don’t agree that we want it. And it depends on people doing their jobs in the “house of cards” that holds us together. We must have faith in the “system” for it to work.
It also depends on our agreeing on what happens, and how we should react to it. Let’s look at the case of Donald Trump and how it was handled. He was impeached. But he was not convicted. Let’s be clear about that. An “impeachment” is like an indictment—a decision that a trial is appropriate.
Impeachment does not mean that a person is guilty. That’s the first thing we need to clear up. Impeachment is not a conviction, and a Senate trial is not an “impeachment.”
The next question is whether the Senate trial of Donald Trump was Constitutional. Some say the trial was unconstitutional because at the time of the trial, Trump was not president, and since the penalty of the trial is removal from office, the argument is that the trial would be moot.
However, there are at least three arguments for Constitutionality. The Constitutional wording is that removal from office depends on both Impeachment and conviction. Clearly, removal comes AFTER conviction, so it is a separate action. A President can still be convicted, even if he can no longer be removed. They are two different actions.
Article II, Section 4:
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.
Here’s a way to look at it: in a criminal trial, a person can be convicted of a crime, but the judge may decide that the time the person has already served in jail is the amount of time he or she would consider appropriate for the crime. In that case, the judge orders, “time served,” and the person is set free, even though he’s still considered guilty. The fact that there was no further penalty does not alter the fact that the person was convicted and was ruled guilty. Therefore, in this case, Trump could have been voted guilty, but his penalty would be considered already achieved, that is, “removal served.”
The second argument about Constitutionality is that impeachment is intended only for elected officials, and since Trump is no longer an “elected official,” the trial should not be held. But we have a precedent for that in the 1876 trial of William Worth Belknap. Since the Constitutionality of that trial was never taken to court, it is, ipso facto, “Constitutional” until the Supreme Court rules otherwise.
The third argument is that Trump was, in fact, an elected official (a) when the acts occurred, and (b) when the House voted for Impeachment. And we have seen that the trial could be held in just one week. There was plenty of time to hold the trial before Trump left office.
The only reason that it could not be held is that the Senate was not in session, and Senate Leader Mitch McConnell refused to bring Senators back. This is equivalent to McConnell’s decision not to hold hearings for Merrick Garland, nominated for Supreme Court Justice. Is it Constitutional for one man to obstruct the entire Senate from performing its required duties?
Speaking of Constitutional, many Senators voted against Trump’s conviction on the basis that they thought the trial would be unconstitutional. But is that act Constitutional? Who is allowed to decide what is or what is not Constitutional? Not the Senate. And especially not individual Senators. It is not their job. It is not their responsibility. It is not their right.
If a Senator honestly felt that the trial was unconstitutional, the appropriate response would be to refuse to participate. The act of voting against the conviction did not say the trial was unconstitutional. It actually confirms the legitimacy of the trial. The appropriate and legal way to protest the trial would be to abstain.
At that point, if the Senators felt that the trial was unconstitutional, they would have to take the case to the Supreme Court.
The Supreme Court is the ONLY body that has the duty and responsibility—and the right—to determine if something is Constitutional. At that point, the Court could have decided to put the conviction aside, if they were to determine that holding the trial was not a Constitutional action.
Nothing is unconstitutional until the Supreme Court says so. And that has been the bane of those who feel that the Presidency has become too powerful. Whenever (so many times!) a president has absorbed too much power, things not allowed under the Constitution—and certainly not intended by the Founders—someone should have taken that president to court. Then, the Supreme Court could have slapped the president down. Since no one has ever done that, presidential power has run wild.
Let’s take a quick look at what the Constitution says. First, in the Preamble, the Constitution says that “We the People” are supreme. Then, in the First Article, the Constitution details that Congress is intended to make all laws, and basically, run the whole country. It is not until the Second Article when the Founders wrote about the Presidency. They chose the word “president” to show how little power they wanted him to have—he was only to “preside.” At the time, it was considered an insult—a way to belittle the office.
And how should he act? There are only four, little sections to the Article. First, it says who cannot become President. Second, it says that the President acts with the advice and consent (permission) of Congress. Third, it says the President informs–answers to–Congress. And finally, the fourth section specifies how Congress can get rid of a President. As one of the House presenters said in the Trump trial, note that Congress has the power to remove a President, but a President may not remove a Representative of Senator.
Another argument against the trial was that the Constitution says that it will be overseen by the Chief Justice of the Supreme Court. There are two answers to that. First, precedent. Short of a Supreme Court ruling, precedent determines Constitutionality. And the precedent for holding a trial without the Chief Justice is the 1876 trial, over which, Morrison Waite did not preside. But since no one took it to the Supreme Court, it is precedent that a trial of a former officeholder is Constitutional, unless and until the Supreme Court rules on it.
And that brings us to John Roberts. Apparently, he was asked to oversee the trial and simply said no.
So the question is “on what grounds” can a Chief Justice simply refuse to do his job? He could argue that there is precedent in the 1876 case. That should have been challenged.
One might assume that Roberts thought the trial was unconstitutional, and therefore, there was no responsibility for him to do his job. But who can decide Constitutionality? Not the Chief Justice. Only the full Court can decide issues of Constitutionality.
The appropriate and legal action by Roberts would have been to take the issue to his Supreme Court., for a ruling Is this trial Constitutional? If they said no, the trial would not convene. But if they decided that the trial is Constitutional, then Roberts would have been Constitutionally required to preside over it.
The irony is that McConnell has said more than once that Trump’s words and actions incited the attack on January 6.
As is typical, Trump unloaded on McConnell—who had been Trump’s loyal lapdog for four full years. It’s the same lack of loyalty that Trump exhibited toward Jeff Sessions, who gave up a safe seat to give Trump everything he wanted (except one), and Trump made sure Sessions would not even get his seat back.
In fact, McConnell is warning that that one acquittal is not the end of Trump’s legal liability. How can that be? What about the concept of Double Jeopardy, which says that a person may not be tried for the same crime twice?
We now turn to the trial of OJ Simpson. Simpson was acquitted of murder. But then, Ron Goldman’s family sued in civil court—saying that Simpson was “liable” for the “wrongful death” of Goldman.
Simpson could not be sent to jail for it, but he could be determined to be “guilty” of the crime, and be required to pay a price. (It’s ironic that one of Simpson’s lawyers, Alan Dershowitz, has been an apologist for Donald Trump.)
We could now see the family of slain officer, Brian D. Sicknick, do the same thing—or the two officers who committed suicide after the event. They could charge that Trump was guilty–responsible for wrongful death. We have the precedent of the Simpson/Goldman trial.
Why does this matter? Because if Trump can be legally determined to have aided the insurrection on January 6, he could be denied the right to hold any office, at any level, according to the Fourteenth Amendment.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State
There was a question of whether the Senate could have held a secret ballot to convict Trump. It would be like a firing squad.
In every firing squad, one of the guns holds a blank round. The reasoning is that members of the firing squad can tell themselves that they may have been the one to fire the blank, and therefore, they should not feel guilty about firing.
In this case, in a secret ballot, no Republicans could have been forced to admit that he or she voted to convict Trump, so they could have avoided the fear of being “primaried” or have his or her family harassed. We’ve already seen that Republicans who voted their conscience have been punished for it.
We did not send him there to do the right thing.
In a secret ballot, Republicans could have said “it wasn’t me”—unless the vote to convict were unanimous.
This is all about the Constitution. We have to respect it, and we have to have faith in one another that we will uphold the values of The United States of America. If we do not defend Constitutional guidelines, the Imperial Presidency will continue to run wild—and Senate Leaders—and Chief Justices—will willy-nilly refuse to do their Constitutional duty—and then, why bother with the pretense of having a Constitution at all?
