February 5, 2021 --
Winston Churchill famously described Russia as "a riddle, wrapped in mystery, inside an enigma." Borrowing on the great statesman's gift for language, this is to suggest that we have just experienced "a coup, wrapped in a second impeachment, inside a tainted election."
We are about to have a Senate trial of the second impeachment of Donald J. Trump, as private citizen. This trial is a constitutional abomination. In view of Artice I, Section 9 of our Constitution, it could not be otherwise. This provision of our Constitution prohibits bills of attainder and ex post facto laws. A bill of attainder is a legislative act imposing guilt on an
individual. The purpose of a second Senate trial of private citizen Trump would be to establish his guilt pursuant to the latest impeachment article against Mr. Trunp: incitement to insurrection. The outcome of a finding of guilt could not remove Mr. Trump from the presidency. As of noon, January 20, Mr. Trump ceased to be president.
Article II, Section 4 of our Constitution says that a "President," among other federal officials, can be impeached. This constitutional provision does not say that former presidents are also subject to impeachment. Mr. Trump was indeed President when the House of Representatives approved this second, quickie, impeachment against him. But he is no longer President.
What was Joseph R. Biden, Jr. doing at the Capitol, January 20, if not assuming the presidency, and calling for unity, to boot, in his Inaugural message.
Unquestionably, the rabid (can there be any other word for their conduct?) Democrats are now rushing to put a private citizen on trial before the United States Senate. Should the Senate vote to convict there can be only one result, as private citizen Trump is no longer president and, therefore, cannot be removed from an office he does not hold. Ah, but a guilty finding would result in "perpetual ostracism," as Hamilton noted in Federalist No. 65, "from the esteem and confidence and honors and emoluments of his country...."
But as Mr. Trump is now a private citizen, such a finding would, I submit, amount to a bill of attainder, proscribed by Article I, Section 9. That is not to say that a former president is protected against a proceeding in a court of law following his removal from the presidency. Hamilton, again in Federalist No. 65, states in no uncertain terms that the former president "will still be liable to prosecution and punishment in the ordinary course of law." The Constitution, however, bars the United States Senate from imposing punishment on a private citizen.
Consider, too, this insight from Hamilton, earlier in No. 65. I quote at some length: "The prosecution [of impeachments]...will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other, and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt. [Italics added.] Hamilton went on to express his belief that impeachments will be prosecuted "by the most cunning or the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny."
Hamilton, by this observation, is remarkably prescient with regard to the mindset of the instigators of this second Trump impeachment -- and the fact of their numbers.
Should the Senate proceed with a trial of the second Trump impeachment, it will reflect not only the "cunning" of the partisan Democrats, and their numbers, but their willingness, nay, readiness. to violate the express terms of the Constitution they took an oath to uphold, The Democrats, for the past for years, have falsely accused President Trump of undermining our democratic institutions. What can be the impact on our Constitution if the Democrat sand Never-Trumpers proceed with an unconstitutional trial of, and bill of attainer against Mr. Trump -- except to take a giant stride towards undermining the source of our democratic institutions?
The United States Senate, before acting further on the matter, should poll the Senate as to whether the proposed Senate trial is constitutional. And may God grant the senators to have the wisdom to act in accordance with the clear language of the Constitution, the light of our liberty, and agree that the proposed trial offends our legacy of liberty.