Law Professor: Trump Subject of Unconstitutional Bill of Attainder

“LEGISLATIVE PUNISHMENT”

by Sharon Rondeau

(Sep. 30, 2019) — On Friday, law professor Victor Williams published a press release through PRNewswire which states that the Intelligence Community “whistleblower” complaint recently made public alleging wrongdoing on the part of President Donald Trump and his administration in foreign policy has led to the House of Representatives escalating an “unconstitutional attainder” which Trump and his legal advisors could dispute on those grounds.

Article I, Section 9, paragraph 3 of the U.S. Constitution states:

No bill of attainder or ex post facto Law shall be passed.

In Federalist #44, James Madison wrote:

Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment.

On Wednesday, prior to a House Intelligence Committee open hearing with Acting Director of National Intelligence Joseph Maguire as witness, Speaker of the House Nancy Pelosi declared that the chamber would embark on an “impeachment inquiry” of the president.  Since then, Pelosi has said she plans to move forward “expeditiously,” focusing on “the Ukraine matter” on which the whistleblower’s complaint focused.

Williams’s September 27, 2019 press release reads, in part:

Speaker Nancy Pelosi has now formally stamped an institutional imprimatur on the continued House harassments intended to punish and harm Donald Trump.

Following another deep-state assault against Trump, six House committees are operating under Speaker Pelosi’s recycled 2016 “resistance” umbrella for impeachment inquiries.

Speaker Pelosi needs to be reminded that the U.S. Constitution’s Article II, Section 4 has an exacting “high crimes” evidence standard for a valid House impeachment…

The full House needs to be reminded that the U.S. Constitution explicitly forbids legislative harassments – that is punishments of direct harm or even reputational harm — such as those of a fake, partisan impeachment.

Article I, Section 9 of the U.S. Constitution states that “[n]o bill of attainder…shall be passed.”

The House may not punish or harm any individual — including Donald John Trump.

Whether using a de-facto (by fact) or de-jure (by law) paradigm, the House’s punitive harassments and the evolving fake impeachment against Trump should be analyzed as an attainder.

In 2001, Williams ran for the Virginia House of Delegates in District 48.  A write-in 2016 presidential candidate motivated by the issue of presidential eligibility, Williams is currently seeking the Republican nomination for the U.S. Senate seat held by Democrat Mark Warner, the election for which will take place in November 2020.

On his campaign website, Williams says, “Mark ‘Russia-Hoaxer’ Warner must be defeated. Warner betrays Virginia values and Virginia voters as he follows other extremists, like AOC+3 and their ilk, in A hard-left lurch.”

In 2016, Williams felt compelled to enter the presidential primary contest as a result of his contention that then-Texas Sen. Ted Cruz, also a contender at the time, is ineligible to the presidency.  Williams wrote that Cruz was perpetrating a “Big Lie” that he is a “natural born Citizen,” as Article II, Section 1, clause 5 of the U.S. Constitution requires for the president and commander-in-chief.

Cruz was born in Calgary, Alberta, Canada to a Cuban-, and later Canadian-citizen father, and a mother born in Delaware.  Whether or not Eleanor Darragh Cruz acquired Canadian citizenship while the family lived in Calgary has not been conclusively confirmed, although a reliable source told The Post & Email in May 2016 that evidence had surfaced that she had, in fact, done so at some point.

“If Cruz is nominated, the Democrats will spend unlimited amounts of hard and soft cash to expose Cruz’s obvious ineligibility in every one of the 50 states,” Williams wrote on his then-campaign website.  In his ballot challenge to Cruz’s eligibility, Williams came to be represented by Atty. Mario Apuzzo of New Jersey, who had also represented CDR Charles F. Kercher, Jr. (Ret) in his 2009 challenge to Obama and Congress as to Obama’s questionable eligibility.

By May 3, 2016, Donald Trump had won enough primaries to effectively prevent Cruz or anyone else from acquiring enough delegates to win the Republican nomination, and Cruz’s eligibility became a moot issue.  Approximately two weeks ago, however, Cruz said he “hopes” to launch a second presidential campaign in the future.

More recently, Williams founded the group “Law Professors for Trump (LPT).” He is a sustaining member of the Republican National Lawyers Association (RNLA) and an adjunct professor at the University of Maryland Francis King Carey School of Law.  Formerly, Williams taught at the Catholic University of America’s Columbus School of Law and the John Jay College of Criminal Justice.

In 2017, Williams was Counsel of Record in an amicus curiae brief submitted on behalf of LPT in support of the Trump administration’s travel ban on individuals from certain countries ascertained to have high numbers of terrorists.  A former Democrat, Williams has been published at The Hill, The Huffington Post, Jurist.org, and numerous other law journals and local publications.

Explaining his reasoning that the U.S. House of Representatives has declared a bill of attainder on Trump, Williams told us:

Going back to the history of a bill of attainder, [William] Blackstone, for instance, an English jurist, said that a legislative process or act that taints or stains (tinctures) an individual or a discreet group of individuals is, in effect, legislative punishment.  It was widely done in England; it was widely done in colonial America and from 1781 to 1789 by the newly-independent states of America.

As an example, the legislature of Georgia or New York would pass a resolution condemning, perhaps, a Tory who had remained loyal to the Crown. New York actually went as far as to punish those people — legislative punishment — in the form of taking away their farms. It was more than just reputational, including imprisoning them and putting them to death.

Constitutionally, legally in history, a bill of attainder was a death penalty. Parliament simply said, by voting up or down by majority vote, “You die.”  It was a legislative process without evidence or due process.  “Not only do you die, but we’re going to taint your estate.  Your loved ones will not be able to inherit, we will confiscate your properties and we will taint your estate and your good name that you thought you were going to pass on to your children and grandchildren.”

That is what a bill of attainder was.  Anything less than death was a bill of pains and penalties.  Done throughout English parliamentary history and in colonial and early America, in 1787 the Framers, in writing our second constitution replacing the Articles of Confederation, got together and said, “We’re not going to allow this anymore.”  It is viewed as a civil and human right advance that was totally disruptive in the world in the 18th century.

The Framers said we were not going to allow retroactive, ex post facto laws; neither are we going to allow bills of attainder. In the Constitutional Convention debates, it was clear that when they outlawed bills of attainder, it was inclusive of bills of pains and penalties.  The legislature was harming a person’s good name, which is foreign to our way of thinking.  To our framers and founders, your name was far more important than your wealth.

So with that view of what an attainder is, which is prohibited by Article I, Section 9, the national legislature, which is our Congress, in January 2019 started to harass and attempt purposely to damage and punish Mr. Trump and his businesses, his associates and family. This legislative punishment has been going on in an identifiable way, and he has been suffering an attainder for that time period.  So Mr. Trump and his supporters have been punished.

The House has been punishing them, and I would say the Senate Intelligence Committee, too, with Mark Warner as ranking member.  With that foundation, we come up to the last month, where they have really ramped up this idea of moving toward impeachment by conducting an “impeachment inquiry.”  Well, no, they’re not. To do an impeachment inquiry, both by constitutional understanding and past House precedent, they would pass, by a simple majority vote, to undertake impeachment.

Why does that matter?  For the last 20 years, my thesis has been that when the House decides and votes to undertake an impeachment inquiry, they have significantly transformed themselves from a legislative body into a constitutional grand jury.

A grand jury is a judicial concept.  So when they start to look at Mr. Trump, after they’ve transformed themselves, it is not a legislative process; it is a judicial process and a bill of attainder.  If it were a valid process, perhaps it would not apply because the bill of attainder says, “legislative punishment.”  What’s unique about the prohibition against a bill of attainder is that you’re not only protecting individuals from punishment; you’re not only protecting their due process rights, but also reinforcing the separation of powers between coordinate branches.

The only exception to that is when the House has formally transformed itself into a constitutional grand jury of impeachment, and similarly, with the Senate.  The only exception to that is when the Senate has to transform itself from the upper chamber of the federal legislature into the nation’s high court of impeachment.  The sergeant-at-arms calls the high court of impeachment into session just as if they were a court, and the chief justice of the Supreme Court presides when the president is the subject of the impeachment.

The reason I got into it 20 years ago is there were three rogue federal judges — Alcee Hastings in Florida, one in Arizona, and Walter Nixon in Mississippi.  Nixon was convicted of a crime, went to federal prison, got out after a few months and went to a halfway house.  At that point, he went to a pay phone and started making arrangements to hire law clerks, because he was not removed from the bench.

The political process was really upset about this and asked, “How can this be?”  But until you impeach, have a trial, and the Senate remove him, he is still a federal judge.

So the question is:  Who was it who told us over these 240 years that the judges have life tenure and salary?  The judges, of course. You not only pick and choose your cases, but you actually write and interpret your own job security – a nice job if you can get it!  So 20 years ago they were removing these three judges. The House impeached and brought the Articles of Impeachment of the three judges over to the Senate chamber.  The Senate said, “We don’t want to do this,” so instead of all 100 senators conducting the trial, they said, “We’ll have 12 senators.  It works for legislation; we’ll have 12 senators conduct the trial and call it an ‘evidence committee.’  So 12 senators will be in the room as the judges and collect all the evidence and 88 senators — that is, 88 judges — will not be in the room.  They won’t hear the evidence.  All 100 will come together and review the record.”

And that’s what they did.  All three judges were impeached and removed from the bench by the Senate with this trial committee process.  All 100 senators voted thumbs-down not through the Senate holding a trial, but through the evidence committee holding the trial.

So when Walter Nixon was removed from the bench, he sued, and it went to federal trial court, appellate court, and it made it all the way to the Supreme court.  But he made a big mistake:  he hired a Washington, DC law firm, and that establishment firm did not argue “bill of attainder.”  They did not say, “The Senate never transformed itself into the nation’s high court of impeachment; they used a legislative process, committee process.” They didn’t make that argument for Walter Nixon.  So when the Supreme Court ruled on this, it said they would leave it a political question because there’s no separate constitutional provision that would be harmed by our leaving it up to the Senate.”

I was just out of law school when that happened and wrote about it while I was a judicial clerk, finishing it during my first year of teaching. It never really went anywhere because it doesn’t happen that often and it was kind-of an odd idea.  When you’re beyond law school, you say, “What the attorney should have said was that it was a bill of attainder.”

It never got too much attention until Bill Clinton came along and the House and Senate were thinking about censuring him outside of impeachment.  I wrote and re-articulated my position; it got a little traction then, basically saying that censure would be too close to the legislative process; the House has not transformed itself into a grand jury, and the Senate hadn’t transformed itself into the nation’s high court of impeachment with the chief justice sitting in the middle.  So that’s the last time I had an opportunity to make this argument.

So how is it presented now?  Since January 2019, the House committees have been harassing and punishing Mr. Trump and his associates. It is clearly not allowed and bad form. I’m not sure you can say it was an attainder because it was just the House committees; it wasn’t the full House.

What Nancy Pelosi did for me personally with her “parasol” theory was to put the imprimatur of the House on this presidential harassment.  She said, “Not only are we going to harass him, but as an entire House we are going to operate under my umbrella and harass him.”  So what she did, in my view, was place the imprimatur of the entire House on him, and I say, “That’s an attainder.”  It was a little bit of a stretch to say that Rep. Nadler or Rep. Schiff was doing it, but what she did by her speech to the nation and coming up with her umbrella thesis was give me an opening to say, “This is the entire House acting, and what the House is doing is harassing him.”

They acknowledge that they haven’t gone on record for an impeachment yet.

The P&E:  Following Pelosi’s announcement, the House went on a two-week recess, but some are wondering if they all went home or if some of them stayed in Washington to pursue the impeachment inquiry.  They also issued several subpoenas, including to Secretary of State Michael Pompeo.

That’s exactly what happened. They literally sleep here in Arlington, and Schiff and his staff are staying in Washington.

You might say this is a grand theory, but is it really anything that would work for Mr. Trump?  My position is, “Yes” because  it’s a much higher level of defense.  It’s not even a defense like attorney-client privilege or executive privilege. It’s a higher defense, because it’s not even a defense; it’s an offense.  It’s saying, “No, Pompeo is not going to come and participate in the punishment of Donald Trump, because what they’re doing is an attainder against him and his administration, and Pompeo will not participate in that unconstitutional attainder.  It’s a much higher level of argument to make to resist the subpoena for Pompeo to say, “I’m not going to do this because it’s a constitutional violation” than to say “I’m not going to do this because there’s a theory of attorney-client privilege or a theory of executive privilege.”  So that’s the value now.

The P&E:  To whom would Pompeo argue that if he were to make such an objection?

It would first be the Justice Department working with the White House counsel to respond to the subpoena to say, “No, because of executive privilege, attorney-client privilege, presidential immunity, and because what you’re doing is unconstitutional” to Schiff’s committee in a letter, and then Schiff would say, “Oh, well, this is going to go into the Articles of Impeachment” and they would go ahead and likely file a lawsuit in federal trial court to force the subpoena issue.  At that point it would be up to the Justice Department lawyers to go to court and say, “We’re not going to allow the subpoena because it’s a constitutional violation.”  Now will they do that?  No.  Will they do that even if I were able to lay my argument out to them in  a New York Times op-ed?  No. Why? Because I can guarantee you that 87% of Justice Department attorneys are anti-Trump.

It might be that Schiff is smart enough not to file in court and just might say it goes right into the Articles of Impeachment. But if he does play it out in the court, it gives me an opening — not a New York Times opening — but an amicus brief opening, because I’m a member of the bar here in DC and I can file as a friend of the court to say, “The Justice attorneys didn’t argue this; however, I’m arguing it as a friend of the court in support of Mr. Trump that this is a constitutional violation.”