A Senate impeachment trial must account for the core problems with the House’s Star Chamber impeachment inquiry, the common law of impeachment, and the Founder’s intent. If the Senate is passive, it will be complicit in an injustice to our nation.
The following is cross-posted (and slightly edited) from the American Thinker
The House is running a Star Chamber proceeding that is not a constitutionally adequate “impeachment inquiry.” Instead, it is the culmination of a three-year long bad faith effort to overturn the 2016 election without regard to the will of the people, precedent, and due process. If the Senate is not careful and does not adjust its current procedures accordingly, then the House will use the Senate trial to make a mockery of our Constitution.
Ironically, though, simply dismissing Articles of Impeachment outright may deprive President Donald Trump of the opportunity to defend himself in the court of public opinion. He needs an opportunity to rebut, in public, the way in which Rep. Adam Schiff has conducted an impeachment using daily leaks to the media.
House Democrats, many of whom were at least complicit in pushing the Russian hoax (the single greatest political scandal in America’s history), appear to be misusing impeachment to launch a collateral attack on the Barr / Durham investigation into the Russian Hoax and to overturn the 2016 election or, failing that, to achieve an unearned electoral victory in the 2020 election. If a passive Senate allows the impeachment trial to go forward under current rules, it will do a grave injustice to this country.
It seems likely that the House will vote out one or more articles of impeachment that simply charge “orange man bad” and that deserve to be summarily dismissed as not meeting the legal standard of a “high crime and misdemeanor.” If, as seems likely, the House also votes to approve an Article of Impeachment for abuse of power regarding the President requesting that Ukraine look into the situation regarding the corruption of Joe and Hunter Biden, then the President may want to prove as an affirmative defense that: 1) the President acted within the legitimate powers of his office just as other Presidents have as regards negotiating with foreign aid; and 2) that Trump had a reasonable basis to suspect that Joe Biden acted corruptly and unlawfully when VP Biden unilaterally threatened to withhold aid from the Ukraine if the government did not fire a particular prosecutor. Proving such an affirmative defense would likely require extensive testimony from both of the Bidens before a Senate vote on the issue. There is no reason the House should be allowed to force a trial on any of their articles of impeachment before the President has proven his affirmative defenses or had the opportunity to dismiss those claims that do not rise to the level of “high crime and misdemeanor.”
Accordingly, the Senate should adjust its Rules for a Trial of Impeachment to as suggested below in the Section entitled “Proposed Changes to the Senate Rules To Provide For Clarity, Fairness, and Due Process.” This would bring such a trial much closer in form to a true criminal trial. Those changes:
- Provide the President with a fair trial and due process rights, including the right to raise pretrial motions to dismiss, either for failure to state a claim or because the President has an affirmative defense to one or more articles of impeachment.
- Provide that the Senate will first consider the arguments of law and hear witnesses to resolve any disputed issues of fact as to any affirmative defenses before voting on a motion. Only if the motions are defeated by a two-thirds majority would the House be allowed to put on evidence relevant to that Article of Impeachment.
- Provide that the trial will be conducted in accordance with the Federal Rules of Evidence.
- Provide that questions of relevancy will be resolved by referring to the original intent of the Drafters of the Constitution and the common law of impeachment. Impeachment was never meant by our Founders to be simply an arbitrary political tool.