The Senate under the Democrats is going forward with the second impeachment trial of President Trump. I view this trial as completely unconstitutional and a back door attempt to prevent him from running for President again, in effect a Bill of Attainder which is forbidden under the Constitution.
One of the great interpretative principles of the Law is that when interpreting a document passages which relate to the same, or similar object, must be read in pari materia, in light of each other, in order to construe their meaning.
In Article I of the Constitution the House is given the power to impeach and the Senate is given the power to try:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I, section 2.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article I, section 3
Impeachment is mentioned under Article II which deals with the Executive Branch:
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.
Article II, section 4
Congress is specifically forbidden to pass a bill of attainder:
No Bill of Attainder or ex post facto Law shall be passed.
Article I, section 9
A bill of attainder is a legislative determination of guilt against a person, and usually a legislative determination of the punishment to be inflicted. Common in English Parliamentary history, the bill of attainder for the Earl of Strafford prior to the First English Civil War being the classic example, the Founding Fathers wished to make certain that Congress could not sit as a Super Court except for the Senate in the sole case of removal after impeachment. Thus impeachment is an exception carved out to the general restriction against bills of attainder. I would argue that Congress must strictly interpret the passages regarding impeachment. If they do not, what they are engaged in is legislative action and punishment against an individual person which is clearly beyond the power granted to Congress under the Constitution.
May the Senate try a President, who is no longer a President, but who was impeached while he was President? (Say that fast three times!) No. The trial following impeachment presupposes that the person who was impeached remains in office. We see this in Article I, section three which clearly states that Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:
Removal is clearly impossible if the person being tried is no longer in office and the language about disqualification appears contingent upon conviction for removal of office. This interpretation is reinforced by Article II, section 4 which speaks only of removal.
The one exception to this analysis in the history of impeachment under the Constitution is that of William Belknap, Secretary of War under Grant, who resigned his office minutes before he was impeached by the House. The Senate proceeded with the trial and failed to convict. Go here to read all about it. None of this was examined by any court, so no judicial precedent was established.
What the Senate is currently engaged in against former President Trump is a disguised bill of attainder, an attempt to resurrect what the Founding Fathers sought to bury in the new Republic they were bringing to birth. It is part and parcel of all the principles and norms cast over the side by the foes of Trump to get Orange Man Bad. This mad and endless fury, and not Trump, is the true danger to our Republic.
The Democratic Party has a long history of refusal to be bound by procedural norms and shyster jurisprudence. It was manifest regionally with the post-bellum orgy of lynching and the violence and chicanery made use of to push blacks off the voter rolls. It was manifest nationally with (1) the refusal of the federal courts and the refusal of Congress after 1937 to distinguish between delegated and non-delegated powers and between executive and legislative functions and (2) the courts arrogating to themselves after 1953 the role of social-policy superlegislature. It’s been manifest in the last 20-odd years in the recrudescence of electoral fraud and the use of the tax collectors, components of the security state, financial regulators, state attorney generals, and now local police and prosecutors as instruments of political warfare. That all this goes on with the explicit assent of the media and the implicit assent of academe is an indicator of how degenerate and malicious our word-merchant element is.
Although the Democrats are the ones pushing the attack on the Constitution this time, Republicans have at times had members who supported reprehensible conduct for pure personal reasons. Witness the conduct of Liz Cheney and nine other House members along with five Republican Senators. They have given great aid and comfort to the attack by the Democrats on the Constitution and on every private citizen in this nation. As I broached earlier, what is unfolding before us is a blatant attempt to enact a Bill of Attainder. Once hated and frequently employed by Parliaments, most citizens today would not know the definition of this most serious threat to liberty. When private citizens can be convicted and punished by a legislative body, a major step toward despotism has been made. It is a major threat to the sacred right to trial by jury. With the legislative and executive branch controlled by a political party which is not constrained by the law in dealing with opposing views, the edifice of our national government is in peril. While likely unsuccessful this time, the ball is rolling, and it’s not uphill. As for the future, wait until the amnesty and 20 million new voters (thanks to Uncle Joe) show up.