You, your estates, your posterities lie all at the stake … if your professed enemies are admitted to witness against you; if every word, intention, and circumstance of yours be alleged as treasonable, not because of a statute, but a consequence, a construction of law heaved up in a high rhetorical strain…. I leave it to your lordships’ consideration to foresee what may be the issue of so dangerous, so recent precedencies.
These were the words of the Earl of Strafford, successfully defending himself against impeachment. England was becoming ever more divided, drifting towards the civil war that would soon overtake the country. Parliament had taken up its ancient weapon of impeachment against the powerful Strafford, the hated king’s chief minister.
The enemies of Trump are foisting on the American public an end run around the most basic of political rights.
But as set out by the most scholarly of the Common Lawyers, Parliament becomes the highest court in the land when dealing with impeachment, and it must set forth charges that are present in law. There is what Churchill called “the massive doctrine of English liberty, ‘No law, no crime.’ ”
For all the hatred against him, Strafford’s enemies could make no headway against his argument. Before there could be an acquittal, the managers of the impeachment trial withdrew to the House of Commons and instead came at Strafford with a bill of attainder, simply legislating Strafford a traitor and sending him to a speedy execution.
The Framers of the American Constitution accepted the idea of Churchill’s “massive doctrine” of liberty. In the language of the Fifth Amendment, a citizen may not “be deprived of life, liberty, or property, without due process of law.” Due process means at the least that one may only be tried for violation of a law already present. No law making something criminal after the fact or a bill of attainder, making a person criminal by legislation, was allowed. Due process for all.
But even though they rejected attainder and ex post facto laws, the Framers accepted impeachment. A legal standard is set for impeachment in the Constitution, so it is unlike attainder in that there must be a trial, not merely a legislation of guilt.
Yet an impeachment trial is different in a major way from a normal trial. The standard of due process was deliberately lowered in this unique case. It is a trial that is free to dispense with many of the safeguards that a normal trial affords the indicted citizen.
Alexander Hamilton writes in Federalist 65 regarding the nature of the impeachment proceeding:
This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it.
The bedrock of political freedom is to be free of arbitrary loss of life and liberty. Yet the very nature of removing someone who is armed with state power makes the situation so critically different that an exception is made even to Churchill’s “massive doctrine.” Just as the Constitution allows even the most basic protection of due process, habeas corpus, to be suspended in a national emergency (as Lincoln did on a limited basis during the Civil War), so too for this case.
For in American impeachment, it is only officeholders in the judiciary and the executive branches who can be impeached, not private citizens. Having power in their hands, they do not need the full protection offered the ordinary citizen standing alone before the prosecution of the state. If they have betrayed the trust of the people, their having that power in their hands is a type of emergency, warranting an emergency response. As long as the person is holding office, he or she is a part of that powerful state, and, in the case of a president, the single most powerful part.
Once that power has been removed, however, that ex-officeholder is now as vulnerable as any other private citizen to the power of the state. Therefore, all the rights of due process return, foremost among them that he cannot suffer loss of any liberty save for conviction for violation of already existing law. The necessary vagueness allowed impeachment proceedings is a flagrant violation of rights when applied to a private citizen.
So what the political enemies of Trump are foisting on the American public is in fact an end run around the most basic of political rights — the right of a private citizen to be tried before an impartial judge and jury on charges known to law. They appropriate the immense gravity of the Constitution to dress up a sordid procedure, but the guise is easily penetrable. Unaccountable to the people and their Constitution, it is merely an exercise of self-justifying power to crush a political enemy.
Just ask these questions: if there really were treason, sedition, or insurrection as defined by our American laws, why does the impeachment party not take the case to trial and prove it beyond reasonable doubt? Surely if they had a case, showing compelling evidence — such as any attorney must show for any conviction — would unite the country behind the accusers.
But instead, they seek a setting in which they do not have to point to a violation of statute, leaving them free to tailor charges that criminalize acts after the fact. They then appoint one of themselves as judge and have the rest sit as “jurors.” They will not hold themselves accountable to the standard of “beyond reasonable doubt.” They will not hold their procedures accountable to anything other than their one-vote majority, as they did in ruling on their own constitutionality to themselves. They show by their actions that the national unity they preach comes not from any effort they make to address everyone’s concerns, but from bulldozing aside all opposition.
Fortunately, they cannot muster the two-thirds of the Senate they need to convict. Yet we will be put through another pointless and senseless drama, even further wounding our national psyche.
Strafford was right. Were this pseudo-impeachment to succeed, it would be difficult to evade the consequences he predicted. I pray that the precedent that the decisive failure to gather even close to the needed votes for conviction will deter any Congress from going down this road again.
Like a doctor who prescribed a powerful drug that harmed the patient more than it cured any disease, the impeachers have engaged in malpractice and brought sickness and suffering to our body politic, not healing. Doctors, heal yourselves.
And, while waiting for that, dear suffering patient — find a better doctor.
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