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“THEY CAN END IT NOW”
by Ren Jander, ©2019
(Dec. 22, 2019) — The United States Supreme Court – in a 9-0 holding – unequivocally ruled that no trial is required for the Senate to acquit, or convict, anyone impeached by the House of Representatives. Even liberal Justices Stevens and Souter concurred in the ironclad judgment. The case is Nixon v. United States, 506 U.S. 224 (1993).
Once you comprehend the momentous importance of this case, you will then understand why Harvard Law School professor (and Democrat impeachment witness), Noah Feldman, recently published an article erroneously claiming that President Trump hasn’t been impeached yet.
Feldman isn’t trying to help the President. He knows the Senate can acquit immediately without waiting for Speaker Pelosi to transfer articles of impeachment, or for House impeachment managers to be appointed. This is because the Supreme Court has ruled – in the Nixon case – that how the Senate goes about acquitting or convicting any impeached person is non-justiciable, in that the Senate’s power is plenary and the Supreme Court may not even review it.
This means that if the Senate acquits Trump immediately – without a trial – the Supreme Court has no authority, whatsoever, to review the Senate’s acquittal, and there isn’t a damn thing the House can do about it.
Feldman is distracting the nation from understanding the full scope of Senate acquittal authority. He knows that if the House hasn’t impeached the President, the Senate could not immediately acquit him. This is why Feldman appears to be defending POTUS.
Appearances are deceptive. Feldman’s true game is to provide cover for Pelosi’s power play in not delivering the articles of impeachment or choosing House impeachment managers, neither of which is necessary for the House to impeach. The Constitution doesn’t mention “articles of impeachment” or “impeachment managers.” And once the House impeaches, the Senate takes over. The House then has no power whatsoever to dictate terms of a trial. No trial is even required.
The Nixon court held that “the word ‘sole’ indicates that this authority is reposed in the Senate and nowhere else.” Feldman is fully aware of this, and he fears the American people will discover the truth. This is why he is trying to convince you that the House has not impeached the President yet.
House Resolution 755 states that the House voted to impeach President Trump, and it voted to exhibit articles of impeachment to the Senate. The twin objectives of the resolution are stated clearly in the text of H.R. 755:
Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.
Resolved, That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following articles of impeachment be exhibited to the United States Senate:”
The resolution passed. It was resolved that the President “is impeached” and that the articles be “exhibited” to the Senate. The first objective was accomplished when the resolution passed, and the second objective has not yet been accomplished. But formal transmission of the articles is not required by the Constitution for there to be an impeachment.
The Senate has no authority to determine what conduct is impeachable or what process the House uses to impeach. On the other hand, the House has no authority over the Senate’s sole power to acquit, or convict, or the process invoked to either end.
Therefore, no trial is necessary for the Senate to acquit immediately. This saga could be over right now. Feldman realizes this is true, so he invented a bogus unwritten requirement into the Constitution, to the effect that impeachment is a process requiring transmission of articles of impeachment to the Senate. Feldman, of course, does not mention the Nixon case.
WALTER NIXON’S IMPEACHMENT CONVICTION
Walter Nixon was the Chief Judge of the Federal District Court for the Southern District of Mississippi. He was convicted of making false statements before a grand jury and sentenced to prison.
The investigation stemmed from reports that Nixon accepted a gratuity from a Mississippi businessman in exchange for asking a local district attorney to halt the prosecution of the businessman’s son. (Sound familiar?) Because Nixon refused to resign from his office as a United States District Judge, he continued to collect his judicial salary while serving out his prison sentence.
The House of Representatives adopted three articles of impeachment for high crimes and misdemeanors. The Senate voted to use Senate Impeachment Rule XI, allowing the presiding officer to appoint a committee of Senators to “receive evidence and take testimony.” The committee did its work then presented the full Senate with a transcript of the proceeding and a report on the facts.
The Senate voted by more than a two-thirds majority to convict Nixon. The presiding officer then entered judgment removing Nixon from his office as United States District Judge. Nixon thereafter commenced suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to “try” all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings.
Nixon sought a declaratory judgment that his impeachment conviction was void and that his judicial salary and privileges should be reinstated. The District Court held that his claim was non-justiciable, 744 F. Supp. 9 (D.C. 1990), and the Court of Appeals for the District of Columbia Circuit agreed. 290 U. S. App. D.C. 420 (1991). The Supreme Court accepted the case, and then ruled that they had no power to review the Senate’s impeachment process. They affirmed that the case was non-justiciable. The Court focused its attention on the word “sole”:
“Petitioner devotes only two pages in his brief to negating the significance of the word ‘sole’ in the first sentence of Clause 6. As noted above, that sentence provides that ‘[t]he Senate shall have the sole Power to try all Impeachments.’ We think that the word ‘sole’ is of considerable significance. Indeed, the word ‘sole’ appears only one other time in the Constitution–with respect to the House of Representatives’ ‘sole Power of Impeachment.’ Art. I, §2, cl. 5 (emphasis added). The common sense meaning of the word ‘sole’ is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted.” (Emphasis added.)
The Court’s holding is clear: the Senate alone determines acquittal or conviction. The Senate committee prepared a report, submitted the report to the Senate, and the Senate voted to convict. Nixon demanded a full trial before the entire Senate. He did not get one. He lost and was removed. The Supreme Court held that it did not have the power to review the Senate’s conduct. As to the meaning of the word “try” in the impeachment clause, the court’s majority opinion states:
“The conclusion that the use of the word ‘try’ in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: the members must be under oath, a two thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word ‘try’ in the first sentence.” [Emphasis added.]
The Court’s use of the word “proceedings” is telling in the extreme. Any action by the Senate is a proceeding, but not every proceeding is a trial. If the Senate proceeds with a motion to dismiss, or a motion to acquit the President, no trial is required.
The Nixon Court continued by making it absolutely clear that an impeachment trial is not required, holding that the Senate is not limited in any way by the word “try” in convicting or acquitting impeached persons:
“In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word ‘try’ in the Impeachment Trial Clause… [W]e conclude…that the word ‘try’ in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.” (Emphasis added.)
Nothing in the Constitution, or in the ruling by the Supreme Court in Nixon, requires the Senate to “try” anyone after the House impeaches. The Senate can simply acquit the President without trying him, because the Senate alone has the power to convict or acquit. The Supreme Court held that there is no identifiable textual limit on that authority. Justice White’s concurring opinion worried that such broad authority in the Senate could be abused, but six of the nine justices joined the majority opinion. All nine approved judgment. And the Senate’s plenary authority is controlling law.
If there is a tie on a motion to acquit or dismiss, the Constitution gives Vice President Pence the tie-breaking vote. If the Democrat Senators running for President have no conflict of interest, neither does Pence. Regardless, the Constitution directly gives Pence the tie-breaking vote, so the GOP can lose three votes, but the Dems would need four GOP defectors to overrule the Chair.
Not only did the Supreme Court reject the assertion that it could review the Senate’s conduct in acquitting or convicting any person impeached by the House, the Court held that it couldn’t even identify a limit upon the Senate’s authority to acquit or convict.
The Court also held that no separate provision of the Constitution is defeated by such a plenary construction of the Senate’s authority. Therefore, not even the sole power of the House to impeach is defeated by the Senate’s sole power to acquit or convict. Boom. Just end it now, Mitch.
Note that current House Representative Alcee Hastings, a former federal judge, was impeached and removed from the bench. He also argued in federal court that the Senate owed him a trial before the full Senate, after he too was convicted by a Senate committee report. The D.C. District Court initially threw out Hastings’ impeachment conviction in the Senate, but after the Nixon ruling, that decision in favor of Hastings was vacated. The district court then dismissed Hastings’ suit as non-justiciable according to Nixon. Hastings remains impeached and removed from the bench.
MORE ON FELDMAN’S RUSE
Noah Feldman’s deceptive legal analysis continued:
“Strictly speaking, ‘impeachment’ occurred – and occurs — when the articles of impeachment are presented to the Senate for trial. And at that point, the Senate is obliged by the Constitution to hold a trial.”
This is the meat of Feldman’s paper chase fairy-tale, and it’s wrong on both claims. Feldman asserts that in passing H.R. 755, the House only “voted” to impeach, but that the impeachment is not completed until the articles are presented to the Senate. That claim fails upon reading the actual text of H.R. 755, which both impeaches the President and requires that the articles be exhibited to the Senate. If the resolution had only mentioned exhibiting the articles, then Feldman might have a point. But the resolution also clearly states that the President “is impeached.” Full stop.
Second, once impeached, the Senate is certainly not “obliged by the Constitution to hold a trial.” Harvard’s esteemed Professor Feldman is certainly aware of the 9-0 Nixon holding. Yet, he fails to mention it at all in his viral article published by Bloomberg. And this is so very telling. He ignores the most important Supreme Court decision in US history regarding impeachment. That’s just lame, bro.
Of course, the House would be well within its sole power to cancel impeachment by voting on a new resolution, but until the House actually takes a subsequent official action, the President remains impeached. So the Senate may acquit immediately.
I find it absolutely frightening that the President’s legal team might be considering Feldman’s position as beneficial to POTUS. It’s even more disturbing that multiple conservative outlets have sadly taken Feldman’s bait. Rather than agreeing with his fairy-tale construction of impeachment authority, the President’s legal team should be pressuring the Senate to rightfully acquit the President immediately, before the House can invent more fake facts from deep state saboteurs that Pierre Dilecto and friends will rely upon in removing the President from office. You don’t want a full trial in the Senate, Mr. President. If it gets that far, your goose may be cooked. End it now.
Schiff, Pelosi and Nadler wielded their authority with a hammer. Their abusive impeachment inquiry broke from historical precedent. They cracked the whip with stealth force. And the framers knew such abuses would occur. The majority opinion in Nixon quotes Federalist Paper No. 66 in discussing that the framers intended each chamber of Congress be a check on the other, whenever one might abuse its sole power regarding impeachment:
“Nixon fears that if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. Id., No. 66, p. 446. This split of authority ‘avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches.’” (Emphasis added.)
A “factious spirit” in the House is exactly what the nation just witnessed as Schiff ran his impeachment inquiry from a bunker with an iron fist; exposed phone numbers of House members and journalists; lied to the American people about his staff meeting with the whistleblower; and read an egregiously prejudicial fictitious bilateral call transcript on the House floor as if it were real.
According to the Supreme Court’s holding in Nixon, the Senate has no legal duty to give the House impeachment a trial. And there is certainly no moral reason for the Senate to respect the pain and suffering Schiff has caused by violating every chance for decency and mutual Congressional respect. In the face of such a factious spirit, the Senate has every moral right and reason to end the Congressional abuse by acquitting the President immediately. Impeachment is a political event. The GOP needs to play hardball politics now. The people will vote again in November. Leave it to us.
In 1974, the Duke Law Journal published a comprehensive article about impeachment and removal of the President. The following passage elucidates a simple truth:
“If impeachment, conviction, and removal are to accomplish a therapeutic effect upon the country, it is essential that the public be convinced of the President’s guilt in the commission of impeachable offenses and thereby be persuaded that his removal is in the constitutional interest of the country. The citizenry must not only be convinced of this but must also be convinced in bipartisan numbers if impeachment is to be dominantly therapeutic rather than divisive.”
There is no bipartisan support for impeachment in the citizenry. Removal of the President will not be therapeutic. It will be divisive on a level we have not seen since the Civil War. The Senate should just end it now.
The Republican Senate majority must rely on the Supreme Court’s 9-0 decision in Nixon. It’s up to the Senate alone whether they “try” the President. They don’t have to. Nothing in the Constitution requires a trial to acquit. The Senate could simply acquit the President, dismiss the impeachment, or adjourn sine die, which is what they did when Andrew Johnson was impeached.
The point here is that the GOP holds power in the Senate, and the law gives them multiple options for ending this national disaster immediately. The Republican Senators should not surrender their authority to Schiff, Nadler and Pelosi. That would be a tragedy.
When the House abuses its power, the upper chamber is empowered to check that abuse. The Senate may acquit without a trial, without any input from the House, and without any possible review by the Supreme Court. This is not an esoteric theory of Constitutional law. This is the exact holding of a 9-0 decision by the Supreme Court. They could end this today by reconsidering Senate rules upon a simple majority. Analysis of this procedure was published at Lawfare back in January by Bob Bauer:
“The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own ‘sole power,’ to decline to try any impeachment that the House elects to vote.
“The current rules governing Senate practice and procedure do not pose an insurmountable problem for this maneuver. Senate leadership can seek to have the rules ‘reinterpreted’ at any time by the device of seeking a ruling of the chair on the question, and avoiding a formal revision of the rule that would require supermajority approval. The question presented in some form would be whether, under the relevant rules, the Senate is required to hold an impeachment ‘trial’ fully consistent with current rules—or even any trial at all. A chair’s ruling in the affirmative would be subject to being overturned by a majority, not two-thirds, vote.”
Pursuant to the above scenario, the GOP could lose three votes for a tie, and Pence could then break the tie. But if the Chair determines that no trial is required by the rules, the Democrats would need to flip four GOP votes. Therefore, the President’s legal team should be pushing for a motion to acquit the President immediately. Hold their feet to the fire and demand an acquittal vote before any trial. If this measure fails, the four (or more) GOP defectors will seal their political fate.
The House has no authority to affect how the Senate conducts impeachment proceedings. Should the Senate grace Speaker Pelosi’s stunt with any shred of legal credibility, it will usurp the Supreme Court’s holding in Nixon. The Senate must not allow the House to overrule the Supreme Court. They can end it now. Spread the word.
Written and Researched by Ren Jander
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