by Joseph DeMaio, ©2021

(Jan. 26, 2021) — The Left’s hatred for Donald Trump continues unabated.  Senator Amy (“Clean-me-a-comb-for-my-salad” Klobuchar now thinks that the Senate can proceed with a trial on the impeachment of Citizen Trump 2.0, despite the fact that he is no longer in office.  As “authority” for that theory, she cites as “precedent” the House impeachment and Senate trial of former U.S. Secretary of War William Belknap in 1876.  Much like Sen. Tim Kaine’s Quixotic errand regarding the 14th Amendment, Sen. Klobuchar’s reliance on the Belknap “precedent” is similarly flawed.

First, a brief history lesson.  Upon learning that he was about to be impeached, Belknap resigned from the office he held (Secretary of War) on the morning of March 2, 1876, which President Grant immediately accepted.  Undeterred by the resignation, the House Judiciary Committee moved forward with a bill of impeachment, with the House finalizing and voting on five articles of impeachment on the same day. 

Significantly, then-Speaker of the House Michael C. Kerr, as part of the process of delivering the bill of impeachment to the Senate, wrote a letter stating that Belknap had resigned “with intent to evade the proceedings of impeachment against him.”  That, Virginia, is a far cry from leaving office by operation of law, i.e., the Constitution, and the results of garnering fewer than 270 Electoral College votes (to be distinguished from “regularly-given” votes…) pursuant to a preceding general election. 

President Trump did not “resign with intent to evade impeachment.”  He left office pursuant to the Constitution after the Wretch from San Crapcisco succeeded in producing a “snap” impeachment founded on the flawed theory that he was guilty of “willfully inciting an insurrection.”  The Klobuchar gambit is founded on the assumption, apparently, that even if Citizen Trump is no longer a sitting “President” – the sine qua non condition precedent to the impeachment and removal of a federal office-holder under Art. 1, § 3, Cl. 7 and, specifically as to a “president” under Art. 2, § 4 – the meaningless procedure of a “trial” in the Senate can proceed based on the “precedent” of the Belknap matter.  Not so fast.

First, in the Belknap case, many Senators (29, to be exact) believed that the Senate lacked subject matter jurisdiction under the Constitution to conduct the trial precisely because Belknap was no longer in office.  Just as one “cannot forget that which was never learned,” one “cannot be removed from office if he/she has already vacated it.”  The whole purpose of an impeachment and trial is to seek a “judgment” removing the person from office and simultaneously precluding and disqualifying the person convicted from in the future holding again any federal office.  But if the single, unitary procedure results in an acquittal, it rationally and logically follows that the “disqualification” potential is simultaneously removed.  It is (or should be) that simple.

However, the omniscient Senators in the Belknap case (37, to be precise) who believed that Belknap’s resignation did not matter and that jurisdiction somehow still existed voted to proceed with a trial.  There is no indication that a ruling from the U.S. Supreme Court was sought as to the constitutionality of the ad hoc, ipse dixit (“it is so because I say it is so”) determination by the Senate that it purportedly had constitutional authority to proceed as it did in trying former Secretary of War Belknap.  With at that time (1876) 40 senatorial votes needed to convict, the result was an acquittal vote of 35 to 25.  Belknap was acquitted of the charges brought on the bill of impeachment, even though the dispute was, as they say in the law, “moot.”  This, of course, would not be the first time the Senate has conducted “show” trials for propaganda or political gain, but that is another story.

Second, as to the Belknap “trial” as well as other subsequent Senate “trials,” a good argument can be made that the Senate altogether lacked (and lacks) authority to conduct them.  This is because, although Art. 1, § 5, Cl. 2 of the Constitution provides that “[e]ach House may determine the Rules of its Proceedings…,” that grant of authority does not extend to ratifying or tolerating assertions of phantom senatorial power or jurisdiction which the Constitution itself otherwise prohibits.

For example, the House could not impeach and the Senate could not try or convict an office-holder for merely being a Christian…, or a Jew…, or a Buddhist.  None of those religious faiths, when practiced by the office-holder, constitutes treason, bribery or high crimes and misdemeanors.  Moreover, a Senate rule purporting to allow such trials would violate the 1st Amendment… not that constitutional Amendments have done much in the past to constrain radical members of the Congress from proposing such rules or laws.

In the same vein, a House or Senate rule purporting to extend the reach of impeachments and trials of impeachments to persons who are not office-holders would seem clearly to be ultra vires and thus, unconstitutional.  The fact that unconstitutional acts and practices in reality take place every day only means that they go either unchallenged or that the Supreme Court refuses to address them, usually on the grounds that those who would try to do so “lack standing.”  Courage has never been a requirement to serve as a Justice of the Supreme Court.

Senator Klobuchar – and the few Democrats in Congress with IQ’s north of room temperature – know that, even with squish RINO Republicans like Mitt Romney, Susan Collins and Lisa Murkowski, the likelihood of securing a two-thirds vote in the Senate to convict Citizen Trump is remote.  This is why they are floating the idea of falling back on the 14th Amendment or that, even if acquitted on the impeachment charge, it would take only a separate simple majority vote of the Senate to activate the other component of the “judgment” following conviction, i.e., “disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States.”

Art. 2, § 4 of the Constitution allows, in a unitary, non-bifurcated action, the impeachment and immediate consequential removal of a defined federal office-holder, including a president.  The word “and” specifically utilized by the Founders is a conjunctive term conveying the intent that a conviction on an impeachment and the resulting judgment is not a separate proceeding precluding the person convicted from again holding office.  Stated otherwise, one cannot be impeached, convicted and yet remain in office.  Both operate simultaneously and in tandem.   

Once a single “judgment” of guilt after a Senate trial on a House bill of impeachment is rendered, the Constitution does not contemplate a subsequent “punishment” phase where there is a separate determination of whether to disqualify (or not disqualify) the person convicted from future federal office, much less do so by a separate “simple majority vote.”  That is goofy, and thus possessing great appeal to Democrats in Congress like Senators Kaine and Klobuchar.

Third, as for the theory that the 14th Amendment provides a viable independent alternative to disqualification from future federal office, after a Senate conviction on an impeachment, there would be no need to resort to the 14th Amendment.  But also note that if after an acquittal in the Senate on a trial of Citizen Trump Impeachment 2.0, the 14th Amendment’s “disqualification” language were invoked by, say, Senator Kaine or Senator Klobuchar – or maybe Mitt Romney –, that pesky 5th Amendment, prohibiting persons from being placed in double jeopardy for the same crime, would forbid it.   This is why they may abandon the impeachment path, but only time will tell. 

No doubt the Democrats are already hard on task concocting a different high crime or misdemeanor upon which to base a “disqualification” assault.  Cunning termites, those Democrats.  Recall again, however, that under the 14th Amendment, because it would take a two-thirds vote of both Houses to disable or “remove” the future office-holding disability provision, logic dictates that imposition of the 14th Amendment’s “disability” preclusion would also require the same proportional vote.    

Arguments to the contrary are, as Justice Antonin Scalia would often comment in his dissents to dumb majority opinions of the Supreme Court: “pure applesauce.”  There are, of course, more colorful, colloquial phrases to describe such arguments, but The P&E is a family-friendly website.  

The irrational, distilled hatred for Donald Trump now being vomited 24/7 by the Left, the mainstream media, the Democrat Party and Democrats in Congress reveals a special toxicity and venomous psychosis unseen in recent history.  These vengeful folks have elevated their revulsion for Donald Trump above their love of – or even indifference to – the United States.  They should be ashamed of their behavior.  But since shame is a component of their characters which they jettisoned long ago, the detestation orgy and obsessive anti-Trump pogrom continues. 

The Goofball in the Oval Office – whose most recent original thought was to send Hunter (“laptop-what-laptop?”) Biden to the take-out window of a D.C. bagel shop for some after-church sustenance – in one breath urges a fostering of “unity” and a “healing” of the nation’s divides…. and then in the next breath immediately proceeds to denigrate 75,000,000 Americans of all races, but in particular, White people.  Stupocrisy – a portmanteau of “stupid” and “hypocrisy” recently coined by your humble servant – now blossoms daily in the Oval Office.  Rumors are yet to be confirmed that “Doctor” [sic] Jill Biden will be planting a garden behind the White House where hundreds of stupocrisy blossoms may thrive in the days to come.  Stay tuned.

Even if we are not yet in a “hot” civil war, the Goofball-in-Chief, his apparatchiks and puppet-masters – and Democrats in general – are doing little to turn that trajectory around.  If Biden really wanted to put an end to the stupocrisy now driving the Citizen Trump Impeachment 2.0 or the 14th Amendment arabesque to disqualify him from running for president in 2024, he could do so. 

The fact that he has not so acted speaks volumes about his own character and intentions as well as those of his handlers.  Do you really think he is functioning “on his own?”  Really?   The continuing ferocity of the Left’s war against Donald Trump and the potential for him running again in 2024 simply underscores another emotion motivating them: fear and panic that he could win.  Again. 

“A Republic, if you can keep it”

Ben Franklin’s nightmare is blossoming into reality.  It is ugly, and shows little sign of becoming less grotesque in a Goofball administration.   Anyone up for a bagel?

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