by Mario Apuzzo, Esq., puzo1.blogspot.com, ©2021

1868 Impeachment Trial  of President Andrew Johnson 

(Jan. 17, 2021) — ABC News is reporting the following:  

President Donald Trump’s personal attorney Rudy Giuliani tells ABC News he’s working as part of the president’s defense team in his upcoming second impeachment trial — and that he’s prepared to argue that the president’s claims of widespread voter fraud did not constitute incitement to violence because the widely-debunked claims are true.

***

“They basically claimed that anytime [Trump] says voter fraud, voter fraud — or I do, or anybody else — we’re inciting to violence; that those words are fighting words because it’s totally untrue,” he said. “Well, if you can prove that it’s true, or at least true enough so it’s a legitimate viewpoint, then they are no longer fighting words.”

https://abcnews.go.com/US/giuliani-working-trumps-impeachment-defense-argue-voter-fraud/story?id=75302032

I am glad to see that President Trump’s legal team has focused on the impeachment defense of presenting evidence of the alleged election irregularities to the Senate during the impeachment trial. As I explain in my previous article, “President Trump Must Immediately File A Declaratory Judgment Action to Vindicate Himself and Put an End to the Election Controversy and New Impeachment,” http://puzo1.blogspot.com/2021/01/president-trump-must-immediately-file.html, if the election in the six or seven contested states can be shown to be invalid, then President Trump did not “lie” to the American people and his speech is protected by the First Amendment. Such a showing would destroy the factual predicate of the Article of Impeachment.

But Trump bringing his case to the Senate rather than first to a court of law is a grave error. As I explained in my article, Trump needs the declaratory judgment action against the House of Representatives and Congress as a whole to be able to establish what are the facts regarding the election in the six or seven contested states and what was his role concerning the Capitol invasion of January 6, 2021. The problem with having in the first instance the trial of those issues in the Senate is that Trump would not have the same due process rights in the Senate that he would have in a court of law.

He needs to exercise those due process rights so that he can later demonstrate in the Senate that he did not commit any “high Crime[]” or “Misdemeanor[].” An impeachment trial in the Senate does not afford Trump the same due process rights he would have in a court of law. As we witnessed in President Trump’s first impeachment, there is no real legal standard as to what a high crime or misdemeanor is. The interpretation and application of those words is rife with political bias existing in any given moment of history. For example, then-House Minority Leader Gerald R. Ford in 1970 defined the words thus: “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. Again, the historical context and political climate are important.” Gerald Ford’s Remarks of April 15, 1970 on the Impeachment of Supreme Court Justice William Douglas Archived April 12, 2019, at the Wayback Machine. Retrieved January 17, 2021. Hence, Trump needs to develop and prove as much factual information as he can in a hopefully dispassionate court of law before a jury free of passion, prejudice, and sympathy prior to the Senate trial in order to meet that political challenge there.

Trump would not have in the Senate the same discovery and subpoena powers that he would have if he first filed the declaratory judgment action in federal district court. A court of law has more power and will to sanction discovery violators than would a politically charged Senate. The rules of evidence apply in a court but not in the Senate. Neither a civil nor criminal court would allow as we saw in the House of Representatives a witness to offer that President Trump is the “Racist in Chief,” clearly irrelevant and inflammatory, as evidence of liability or guilt with respect to the Capitol invasion.

Furthermore, just showing that he spoke the truth about the election irregularities is not sufficient. Trump also must demonstrate that he did not cause the Capitol violence and invasion. The issue of causation (is Trump’s speech a legal cause of the violent invasion of the Capitol) can better be presented and argued in a court of law, which is highly experienced with the complexity of the causation issue. Consider how the politically charged members of the House of Representatives during the impeachment trial basically ignored the fundamental issue of causation. Like in the House of Representatives, we cannot expect a similarly politically charged Senate to give to the causation issue the respect that the law demands it deserves. In the Senate, like we saw in the House of Representatives, Trump would probably be subjected to that body’s political judgment, however tainted, and a victim of our current political and social “cancel” culture rather than to any legal judgment. Simply stated, Trump cannot expect to receive due process of law in the Senate that he would receive in a court of law.   

Corporate interests have significantly cut President Trump’s ability to communicate with the American people and the world. They are therefore interfering with his political speech and ability to defend himself and the nation. With a lawsuit in court, President Trump can fully defend himself by taking action to show that he did not commit any wrong. There, he would also have the right to have a jury of the people decide the facts based on admissible testimony, exhibits, and stipulations rather than the politically motivated Senate acting as a jury. Finally, he would also be able to appeal to the Circuit Court of Appeals and have a path to the U.S. Supreme Court, if necessary. There is no appeal in an impeachment trial by the Senate. Even if he were to file an appeal to a court of a Senate conviction, that court would most likely rule that it has no jurisdiction because what happened there is a political question and nonjusticiable. See https://www.lawfareblog.com/supreme-court-has-no-role-impeachment. After developing his evidence and factual record in court, he can then stand fully prepared to challenge his impeachment trial in the Senate. Trump’s legal team should also seek a court order staying the impeachment trial pending completion of his declaratory judgment action.

The due process rights outlined above, among others, are fundamental to our justice system. Hence, all roads lead to President Trump having to bring his case to a court of law first before he brings his case to the Senate.  Legal action in a court is the only way that he can hopefully receive the due process and justice to which he is entitled. 

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  1. President Trump making his case in a court of law by way of declaratory judgment action against the House, Senate, and whole Congress under 28 U.S.C. §2201 and F.R.C.P. 57 would not only provide him with the evidence he needs to effectively defend himself in the Senate impeachment trial and in any possible later criminal prosecutions, but would also significantly aid the defenses of Senator Josh Hawley, Senator Ted Cruz, Rudy Giuliani, Parler, and any other target of ambitious and corrupt political operatives.

    1. But see Nixon v. United States, 506 U.S. 224 (1993) (the question of whether the Senate had properly tried an impeachment was a political question over which the court had no jurisdiction).

      1. Hey Henry Miller,

        This is what I wrote in a comment on my blog at, President Trump Needs to Make His Impeachment Defense First In Court Before Making It In the Senate http://puzo1.blogspot.com/2021/01/president-trumps-needs-to-make-his.html :

        See Nixon v. United States, 506 U.S. 224 (1993) (the question of
        whether the Senate had properly tried an impeachment was a
        political question over which the court had no jurisdiction).

        This is what you wrote here:

        But see Nixon v. United States, 506 U.S. 224 (1993) (the question
        of whether the Senate had properly tried an impeachment was a
        political question over which the court had no jurisdiction).

        Maybe you can get a job working for President Joe Biden. He’ll understand. And if that fails, you can always try CNN.

    1. Hey Henry Miller,

      You must have poor reading comprehension if you believe that Orly Taitz is “somewhat” taking my advice by filing her lawsuit to vacate the upcoming impeachment trial. But then maybe you are a fraud and that is not the case.

  2. Henry Wilson, The eligibility suit against Kamala Harris is NOT moot. Kamala Harris is NOT the bona-fide Vice-President since she is in that office Ultra Vires. Just today I filed an emergency petition for preliminary injunction against Harris with the Circuit Justice for the USCA-DC, Chief Justice John Roberts. Kamala Harris is not eligible for the office she now occupies. She has no lawful claim to it.

    1. Leo Donofrio has recently published some articles about quo waranto. His discussion referenced a case called Drake v. Obama.

      That case says many things, but notably it said that the inauguration moots relief for anyone who doesn’t have a claim to the challenged office. Which is why Donofrio believes the only person with standing is Pence.

  3. Henry Wilson, The eligibility suit against Kamala Harris is NOT moot. Kamala Harris is NOT the bona-fide Vice-President since she is in that office Ultra Vires. Just today I filed an emergency petition for preliminary injunction against Harris with the Circuit Justice for the USCA-DC, Chief Justice John Roberts. If Kamala Harris is not eligible for the office she now occupies (she isn’t) she MUST leave that office.

  4. That would be nice and it makes sense except for one small item. Somewhere close to 50 cases have attempted to get a court hearing and each and every one has been dismissed without a presentation of the evidence. And that includes the s0-called “Supreme” Court.

  5. Robert thanks for your efforts. Also, I appreciate your shared knowledge and
    information. Also, most of all, thanks for defending the Constitution.

    On another topic, where was Trump’s hearing, and his ability for him to cross examine and present evidence ?

    1. It was a sham Impeachment. I am sure the founders did not want to create a process that did not include basic due process rights. A President is entitled to the same rights as any other American. Holding a Senate trial after President Trump leaves office is an exercise in unconstitutionality. The Impeachment protocol is NOT designed to try former Presidents. The Chief Justice MUST decline to preside. He has NO role in trying a former president. Neither does the Senate. The Senate and John Roberts will be complicit with the unconstitutional farce if they proceed. It IS unconstitutional on its face.

  6. There is no role for the Chief Justice or the Senate to try a “former” President. I said so much to Chief Justice Roberts in a recent letter. The Constitution is clear. Impeachment is for the sole purpose of removing an official from office. A former president cannot be removed by impeachment from an office that he does not actually occupy.

    Proceeding with a trial to remove a former President from office after he or she has vacated it is simply demented and unconstitutional on its face.

    The moment President Trump’s term ends he becomes a former President entitled to all the benefits provided by The Former Presidents Act. He can also run for a second term.

    1. “When THE PRESIDENT of the United States is tried the Chief Justice shall preside.”- Art. 1, Sec. 3, Clause 6, USConst. The Senate has NO Constitutional role in trying a FORMER President after he is no longer in the office from which removal is sought. The purpose of Impeachment by the House and trial by the Senate applies only to removal from office and disqualification from holding future office. The removal of office by conviction of the Senate activates the disqualification from holding future office. One cannot be disqualified from holding future office unless he or she is first convicted in a Senate Trial on Impeachment by the House. One cannot be TRIED by the Impeachment process unless one actually occupies the office from which removal is sought. It’s COMMON SENSE!!

      1. “The removal of office by conviction of the Senate activates the disqualification from holding future office.”

        Just to be clear, removal from office requires a second vote by the Senate, it is not automatic.

        Congressman Alcee Hastings was a federal judge who was impeached by the House then convicted and removed from office by the Senate. However, the Senate did not vote to disqualify him from “any office of honor, trust, or profit under the United States.” He was subsequently elected to Congress.

  7. I recently wrote to Chief Justice Roberts that he AND the Senate has absolutely NO Constitutional role in trying a “former” President. It is unconstitutional on its face to try a former President. A former President is NO LONGER in the office from which his or her removal is sought. I know what I am talking about here. Roberts should NOT make a fool of himself nor should the US Senate entertain such a ludicrous and foolish endeavor. A President, after he or she leaves office is ENTITLED to Secret Service protection, a monetary pension AND a paid staff. See: The Former Presidents Act. https://www.worldatlas.com/articles/10-rules-that-former-presidents-have-to-follow-after-leaving-office.html Former Presidents who served only one term also CAN run again.

  8. I recently wrote to Chief Justice Roberts that he AND the Senate has absolutely NO Constitutional role in trying a “former” President. It is unconstitutional on its face to try a former President. A former President is NO LONGER in the office from which his or her removal is sought. I know what I am talking about here. Roberts should NOT make a fool of himself nor should the US Senate entertain such a ludicrous and foolish endeavor. A President, after he or she leaves office is ENTITLED to Secret Service protection, a monetary pension AND a paid staff. See: The Former Presidents Act.

    https://www.worldatlas.com/articles/10-rules-that-former-presidents-have-to-follow-after-leaving-office.html

    Former Presidents who left office on good terms, after serving just one term, CAN run again.

        1. Trump would not bring the “impeachment” inside the courtroom. Rather, he personally (not some third party with no standing) would bring to the courtroom his real live controversy with Congress regarding the election in the contested states and the invasion into the Capital. The issue of removing Trump via impeachment would not be before the court. Trump needs the findings of the court so that he can later defend himself in the impeachment trial. Trump’s dispute with Congress is a real live controversy that can be resolved through court action.

          What I recommend is a way that Trump can have his due process rights enforced, something which would most likely not happen in the Senate as it did not happen in the House.

        2. You said: “The impeachment’s triers of fact — the Senate — wouldn’t be bound by the court’s findings.”

          Now, you are really stretching this thing to save your position. I would like to see the Senate refuse to comply with a valid judgment of a court of law, especially if it is that of the U.S. Supreme Court.

        3. I disagree. If there was such a FLAGRANT diversion from the authority granted to the Congress (House and Senate) that it was overtly and demonstrably unconstitutional, the US Supreme Court is duty obliged to address it. ALL public officials take an oath to support the constitution. Otherwise , the constitutions would mean NOTHING!

        4. All of the Government is bound by the opinions of the US Supreme Court. The Constitution gives powers to the different branches. That there would be absolutely no legal recourse should any of the branches act outside of Constitutional parameters is simply ludicrous.

        5. In the United States, juries listens to the evidence presented by both sides.

          In the United States, the defendant can’t sue the jurors to compel them to agree with the defendant’s version of the facts.

      1. Alan Dershowitz and other lawyers back me up. Trying a former President in the Senate is simply not provided for in Article 1. What is to stop anyone from impeaching any former president? The Senate and the Chief Justice would be acting ultra vires. The recent Impeachment should not be given legitimacy by even accepting the articles of Impeachment by the Senate. Art. 1, Sec. 3 Clause 6 deals with the impeachment of “The President”. I doubt that a Senate Trial can be accomplished prior to President Trump leaving office at noon today. “We the People” must NOT stand by and let President Trump be railroaded by a kangaroo Senate Trial that IS unconstitutional on its face.

        1. Some historical context.

          In Federalist 65, Hamilton explained how the Convention arrived at the process of impeachment:

          “The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it.”

          During the debates over impeachment, Colonel Mason said the following,

          “Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after “bribery” “or maladministration.””

          Col. Mason then withdrew “maladministration” to “other high crimes & misdemesnors agst. the State”

          What is important is his statement, “Hastings is not guilty of Treason.”

          Warren Hastings was impeached after he resigned as Governor General of Bengal and had returned to England. The Framers were aware that someone could be impeached even after they left office.

          Anyone interested in the original intent of the Framers would agree that a former President can be impeached.

          Federalist 65

          https://avalon.law.yale.edu/18th_century/fed65.asp

          Convention – September 8th

          https://avalon.law.yale.edu/18th_century/debates_908.asp