The move to impeach an ex-president is no longer about Donald Trump.
The Democrats’ coming lawless impeachment trial violates the Constitution and libertarian tradition. The Constitution states impeachment can only be used against federal officials, that it doesn’t apply to private citizens. Article II, Section 4, states who can be impeached. “The president, vice president and all civil officers of the United States, shall be removed from Office on Impeachment for, and Convictions of Treason, Bribery and other High Crimes and Misdemeanors.” It doesn’t cover postoffice careers.
So Congress, despite the insistence of Trump’s opponents, lacks the power to impeach someone who is no longer a federal official. And the Constitution also prohibits Congress from enacting “ex post facto law.”
But the law, and even its recent impeachment precedents, the Democratic leadership is saying, doesn’t matter. They are basing their argument on a tenuous report of the Congressional Research Service (CRS) that says ex-officials can possibly be impeached. But, in the case of a president, it has never happened.
Indeed, the report, The Impeachment and Trial of a Former President, does say that “there are textual arguments against Congress’s authority to apply impeachment proceedings against former officials.” Even in arguing that some legal scholars say this unprecedented impeachment is possible, the report must hedge the point.
Still, it says that “the plain text of the Constitution states that ‘the President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment…and Conviction,’ could be read to support the requirement that the process only applies to officials who are holding office during impeachment proceedings.”
The CRS report only cites a nineteenth-century secretary of war who was impeached after he left office. But he was exonerated in the impeachment trial partly because several senators said former officials couldn’t be impeached. And this argument is affirmed by US Supreme Court justice Joseph Story in his Commentaries on the Constitution of the United States.
An irony of this lawlessness is that Democrats are violating their own recent precedents. In their 2020 Trump impeachment they targeted a sitting president. They produced substantial evidence in the House. The trial in the Senate was presided over by the chief justice, as required by the Constitution.
But in this second impeachment, in the one-day snap impeachment in the House, Democrats never produced evidence. They only produced rhetoric.
Comparing this to a trial, one in which evidence is examined and testimony is taken, is a judicial joke. US Supreme Court chief justice John Roberts will not be part of this second impeachment. Instead, this trial will be presided over by one of Trump’s senatorial critics. In a Kafkaesque twist, Senator Patrick Leahy presides but also votes!
The Democrats’ rationale in this unprecedented impeachment of a private citizen is that Trump must not escape criminal penalties for his alleged plotting in the Capitol attack. Without impeachment, Senator Chuck Schumer says, Trump will have “gotten a get out of jail free card.” However, the logic is flawed.
Private citizens, including ex-presidents, are subject to criminal law. Otherwise, why did President Nixon, charged in the Watergate crimes, accept a pardon after leaving office? But these Democrats are setting a precedent that could destroy our nation.
If a Democratic government can impeach a former Republican president, then why can’t a succeeding Republican government impeach a former Democratic government? How about former president Bill Clinton? Could he be impeached? Why not? But this is what Democrats want.
The charges brought by Democrats in a highly charged ex post facto impeachment trial would not be the same as in a regular criminal court. In the latter Trump would face a jury of his peers instead of a congressional jury of mostly people who hate his guts.
The criminal justice process as guaranteed by the Bill of Rights is not the formula most of the congressional Democrats want. This is one reason they prefer to impeach Trump in a political environment and not let him be tried in a criminal court. Courts must have nonbiased jurors and judges.
The Democrats don’t seem to care about constitutional safeguards that extend to everyone, even the most unpopular, controversial of people in a free society. That’s not surprising, since many radical Democrats have already suggested that various parts of the Constitution, such as those guaranteeing free speech and the right to arms, be scrapped.
But are these Democrats, who are forcing us down a constitutional hole that will destroy the law, aware that their malevolent actions could turn on them as well as their opponents?
“He who fights with monsters should be careful lest he thereby becomes a monster,” Nietzsche writes in Beyond Good and Evil.
And, Nietzsche continues, “if thou gaze into an abyss, the abyss will also gaze into thee.”
If the Democrats win, if they distort the Constitution to their political will, we’ll be deep in a constitutional abyss from which we will likely never emerge.
