Democrats have spent weeks screaming about how the Capitol riot was the gravest threat to democracy since 9/11. In reality, their response to it has been.Our Founders’ worst nightmare was actually what Democrats are doing right now: Using one branch of govt to usurp the constitutional authority of another in an attempt to unlawfully impose govt sanctions on a private citizen… Click To Tweet The Senate is the only prosecuting agency partisan enough & thirsty enough for vengeance to actually try Pres. Trump - @DanODonnellShow Click To Tweet
February 12, 2021
Perspective by Dan O’Donnell
For more than a month now, Democrats and their allies in the media have been in a state of high dudgeon over the riot at the U.S. Capitol, which they have hysterically labeled the gravest threat to the republic since at least 9/11 and perhaps Pearl Harbor.
In reality, their response to it—the utterly unconstitutional Senate trial of a private citizen—is a far greater threat to the long-term stability of American democracy than some jackass in Viking horns.
The United States Senate has as much constitutional or legal authority to try Donald Trump this week as it does Kim Kardashian. While the public spectacle of such a show trial might be tantalizing revenge porn for liberals desperate for one last shot at the former President, it sets a dangerous, untenable precedent.
Article I, Section 2 of the Constitution gives the House of Representatives “the sole power of impeachment,” while Section 3 provides that “the Senate shall have the sole power to try all impeachments” and that “when the President of the United States is tried, the Chief Justice [of the Supreme Court] shall preside.”
Senate President Pro Tempore Patrick Leahy, not Chief Justice John Roberts, presiding over this week’s trial because, of course, the President of the United States is not being tried. This presents something of a paradox, as Article II, Section 4 makes clear that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Trump is not President, he is not Vice President, and he is not a “civil Officer of the United States,” so he cannot be “removed from Office” if he is convicted at trial. So how can the Senate constitutionally try him and, if he is convicted, how can he logically be punished since he has already left office? Article I, Section 3 underscores this point, as it holds that “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
Democrats claim that conviction would bar Trump from ever again seeking the presidency (or any other elected office) and thus the trial is justified, but this misinterprets the first clause of the Section. A vote to convict would automatically result in Trump’s removal from office, while a second vote would determine whether he should ever be allowed to hold office again. If there is no possible way the first punishment applies, then why should there even be a second vote?
Democrats point to two cases in which federal government officials were in fact impeached while in office and tried after they left. In 1799, the House impeached Tennessee Senator William Blount after the Senate expelled him, but the Senate then voted 14-11 to dismiss the charges. In 1876, the House impeached Secretary of War William Belknap, who then resigned. The Senate tried him anyway but acquitted him.
The Belknap impeachment, they claim, proves beyond all doubt that Trump’s trial is constitutional. It is revealing, though, that they have ignored far more recent examples. In 1926, the House impeached federal judge George W. English but he resigned before the Senate trial could begin. As a result of his resignation, the charges were dropped.
In 1974, President Richard Nixon abruptly resigned before the House could impeach him on Watergate-related charges, and the Department of Justice’s Office of Legal Counsel determined that “as a practical matter, if the President should resign, this would probably result in termination of impeachment proceedings.”
35 years later, the House impeached federal judge Samuel B. Kent, who then resigned. Less than a month later, the House passed a resolution asking the Senate to not try Kent, and the Senate obliged.
All precedent from the past century indicates that the Senate should end its impeachment proceedings upon the resignation of the defendant, and the plain language of the Constitution itself indicates that the Senate has no power to try anyone but “the President, Vice President and all civil Officers of the United States.”
How then, Democrats ask, could former Presidents be held accountable for the high crimes and misdemeanors they commit in their final weeks in office?
“This would create a brand new January exception to the Constitution of the United States of America, a January exception,” said impeachment manager Jamie Raskin during his opening argument at Trump’s Senate trial. “And everyone can see immediately why this is so dangerous. It’s an invitation to the president to take his best shot at anything he may want to do on his way out the door, including using violent means to lock that door, to hang onto the Oval Office at all costs, and to block the peaceful transfer of power. In other words, the January exception is an invitation to our Founders’ worst nightmare.”
No, our Founders’ worst nightmare was actually what Raskin and fellow Democrats are doing right now: Using one branch of government (the Legislature) to usurp the constitutional authority of another (the Judiciary) in an attempt to unlawfully impose government sanctions on a private citizen.
So what is the solution to the “January Exception?” The proper exercise of government authority, of course. Had Raskin bothered to read the Constitution, he would have noticed a clause in Article I, Section 3 that every Democrat in the country seems to have ignored: “The party convicted [by the Senate] shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
In other words, Trump should face trial in a court of law just like any other private citizen. Were he tried and convicted by the Senate while he was still President, he would be removed from office and still subject to criminal charges for incitement of a riot. Since he is no longer President, he cannot be tried or convicted by the Senate, but he can still most definitely face criminal charges.
Democrats know he won’t, though, because even the most partisan prosecutor thirsting for vengeance understands that what Trump said on January 6th did not actually incite a riot and was in fact protected political speech.
The Senate, then, is the only prosecuting agency partisan enough and thirsty enough for vengeance to actually try Trump. That it is doing so in direct conflict with the Constitution is not only wrong and foolhardy, it is far more dangerous than it is pretending Trump’s speech was.