By: T. Jeffersonian
There are three portions of the Constitution of the United States at play during an Impeachment: Article I (Sections 2 and 3); Article II (Section 4); and the Sixth Amendment.
Article I, Sections 2 and 3, gives the United States House of Representatives to sole power to impeach and gives the United States Senate the sole power to try an impeachment. Section 3 states that two-thirds the Senate present must vote in favor of a conviction. Section 3 further identifies the available punishments for a conviction as being removal from office and barring the convicted civil officer from ever holding future office.
Article II, Section 4 identifies the President, Vice President and all civil officers of the United States as being subject to removal from office through impeachment. Section 4 also identifies the reasons for impeachment as being conviction of treason, bribery, or other high crimes and misdemeanors.
The Sixth Amendment to the United States Constitution gives criminal defendants seven personal rights: (1) the right to a speedy trial; (2) the right to a public trial; (3) the right to an impartial jury; (4) the right to be informed of pending charges; (5) the right to confront and to cross-examine adverse witnesses; (6) the right to compel favorable witnesses to testify at trial through the subpoena power of the judiciary; and (7) the right to legal counsel.
So far, three Presidents, one Senator, one cabinet officer, and fifteen judges have been impeached, and of these only eight judges have ever been convicted and removed from their office. Obviously, the qualifier of “three Presidents” should now include three Presidents, but one of these Presidents, Donald Trump, has now been impeached twice.
During past times, impeachment was deemed a “last resort”. Further, much has been debated historically about the Section II clause “high crimes and misdemeanors” which is included in the brief list of impeachable offenses. High crimes and misdemeanors is broad and inclusive and blurs the lines between fitness for office and having committed an actual crime where an officer, such as the President, abuses their power. While serving as a member of the United States House of Representatives, Gerald Ford, simply described impeachable offenses as whatever the majority of the House of Representatives determines them to be. High crimes and misdemeanors is therefore whatever the House of Representative determines it to mean.
In the 6th Amendment, as previously described, the United States Constitution specifically determines the seven legal rights for a criminal defendant. An impeachment however is not a criminal case, it is a civil case having quasi-criminal proceedings. It is difficult to determine if the right to an impartial trial applies during an impeachment. It must however apply when one takes the Senator’s impeachment oath into consideration. Senators take an oath pledging to “do impartial justice according to the Constitution and laws” before they serve as impeachment jurors. The problem in Donald Trump’s second impeachment is that several
Senators have already signaled in the media that they are open to a conviction or have described the President as “having done enough damage already”. A normal citizen known to have made such pre-trial comments through the voir dire process would ordinarily not be allowed to sit as an impartial juror. There is also a uniqueness to this case and that is many of the jurors from Donald Trump’s first impeachment trial, will now sit as jurors in his second impeachment trial which again pre-disposes how each juror will vote thus rendering an impartial proceeding impossible to assure.
Being found guilty and convicted during impeachment, removed from office, and barred from future office does not end Donald Trump’s legal jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not apply to an Impeachment conviction. A successful impeachment conviction will then be used as evidence and as a precedence in establishing guilt in ensuing criminal and civil cases that directly and indirectly connect to Donald Trump’s impeachable offenses and the Senate’s verdict. Because the entire country is aware of Donald Trump’s impeachments, it is arguably reasonable that Donald Trump will never again be assured of a fair, speedy, and impartial legal proceeding.
Finally, if Donald Trump leaves office on January 20, 2021, can he still be impeached? In 1799, the Senate ruled that a former Senator was not a civil officer and that the Senate did not have jurisdiction to impeach the man. The impeachment was resultingly dismissed. It would seem reasonable that a former President also fits this same precedence. If, however, Donald Trump is determined to still be subject to impeachment despite his being a former President, this will open a dangerous precedence where all former Presidents are again subject to impeachment. There is no statute of limitations for impeachment in the Constitution. Imagine Jimmy Carter, Bill Clinton, George W. Bush, or Barack Obama returning to the Senate to be impeached!
Whatever happens in the next five days before January 20, 2021 and immediately afterwards, can hijack the first 100 days of Joe Biden’s Presidency. The distraction of a second impeachment will consume attention and effort away from what are the most immediate priorities: defeating Coronavirus and fully restoring the American way of life including our economy and our basic individual freedoms. The Democrats campaigned and won the election because they convinced that their plan to defeat Coronavirus was the way to go. If the Democrats disappoint we the voters and do not deliver on their campaign promises, then we the voters must assure with our next votes that they are removed from their offices.