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Trump Attorneys Argue Against Constitutionality of Impeachment Trial. Aired 4:30-5p ET

Aired February 09, 2021 - 16:30   ET


DAVID SCHOEN, IMPEACHMENT ATTORNEY FOR DONALD TRUMP: The distinguishing characteristic of a bill of attainder is the substitution of a legislative determination of guilt and legislative imposition of punishment for judicial finding and sentence.


The bill of attainder clause in the separation of powers doctrine generally reflects the framers concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of power.

As the Supreme Court explained and United States vs. Brown: "The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical, and, therefore, soon-to-be- outmoded prohibition, but, rather, as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, more simply, trial by legislature."

The bill of attainder reflected the framers' belief that the legislative branch is not so well-suited as politically independent judges and juries.

When the Senate undertakes an impeachment trial of a private citizen, as it clearly understands to be the case here, supported by the facts that the chief justice is not providing (sic), and Mr. Trump is not the president, it is acting as a judge and jury, rather than a legislative body.

And this is exactly the type of situation that the bill of attainder constitutional provision was meant to preclude. It is clear that disqualification from holding future office, the punishment the House managers intend to seek here, is a kind of punishment like a banishment and others that is subject to the constitutional prohibition against the passage of bills of attainder, under which -- under which general designation bills of pains and penalties are included.

The cases include Cummings, Ex Parte Garland, and this Brown case. The Supreme Court three times has struck down provisions that precluded support of the South or support of communism from holding certain jobs as being in violation of this prohibition. Thus, the impeachment of a private citizen in order to disqualify them from holding office is an unconstitutional act constituting a bill of attainder. Moreover, this is the exact type of situation in which the fear would

be great that some members of the Senate might be susceptible to acting in the haste the House acted in when it rushed through the article of impeachment in less than 48 hours, acting hastily simply to appease the popular clamor of their political base, the very kind of concern expressed by Mr. Hamilton in Federalist 65.

Moreover, as Chief Justice Marshall warned in Fletcher vs. Peck: "It is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men and women are exposed.

"The restrictions on the legislative power of the states are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each state. No state shall pass any bill of attainder in this form. The power of the legislature over the lives and fortunes of individuals is expressly restrained."

And so now let's turn to the text of the Constitution.

Turning to the text of the Constitution is, for many, of course, the most appropriate and the most important starting place for trying to answer a Constitution-based question.

There are several passages of the United States Constitution that relate to the federal impeachment process. Let's turn to a reading of the text now.

A true textual analysis, as the name implies, always begins with the words of the text, and only resorts to legislative history or history itself if the meaning of the text is not plain. As the Supreme Court has emphasized, statutory interpretation, as we always say, begins with the text.

In interpreting the text, we are guided by the principle that the Constitution was written to be understood by the voters. Its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning. And we must enforce plain and unambiguous statutory language according to its terms.

If the president is impeached, the unambiguous text of the Constitution commands that the chief justice of the United States shall preside, as we discussed earlier. Again, the chief justice is disinterested and nonpartisan. His presence brings dignity and solemnity to such a proceeding.

In this case, the chief justice clearly is not presiding. And the conflict of interests wouldn't necessarily just arise as a substitute for the vice president. It's the appearance of a conflict of interests and the -- and a conflict of interests and the prejudgment that we have discussed.


In this case, as we say, the chief justice clearly is not presiding. The Senate president pro tem is presiding. It appears that, in the leader's view, undoubtedly joined by other senators, this is permitted by the Constitution, because the subject of the trial is a non- president.

As such, it is conceded, as it must be, that, for constitutional purposes of the trial, the accused is a non-president. The role of the Senate, though, is to decide whether or not to convict and thereby trigger the application of Article 2, Section 4: "The president, vice president, and all civil officers of the United States shall be removed from office on impeachment for, conviction of treason, bribery, or other high crimes and misdemeanors."

From which office shall a non-president be removed if convicted? A non-president doesn't hold an office, therefore, cannot be impeached under this clause, which provides for the removal from office of the person under the impeachment attack.

The House managers contend that the fact that the chief justice is not providing (sic) does not impact the constitutional validity of this trial. Notably, they devote only a single paragraph of their trial memorandum to developments so significant that it prompted multiple senators to declare the entire proceeding suspect, with one going so far as to say that it crystallized the unconstitutional nature of this proceeding.

And the single paragraph that the House managers do devote to the issue is entirely unpersuasive on the merits. The House managers' position ignores traditional statutory canons of interpretation. It is well-established that a term, as a matter of statutory interpretation, that a term appearing in several places in a statutory text is generally read the same way each time it appears.

This presumption is at its most vigorous when a term is repeated within a given sentence. Additionally, the court in at least one instance has referred to a broader -- quote -- "established canon" that similar language contained within the section of a statute be accorded a consistent meaning.

I know this is a lot to listen to at once, a lot of words, but words are what make our Constitution, frankly, and the interpretation of that Constitution is, as you well know, a product of words.

If the text -- quote -- "the president of the United States" in the constitutional provision requiring the chief justice to preside can refer only to the sitting president, and not to former presidents, then the textual identification of the president contained in Article 2, Section 4, which makes the president amenable to impeachment in the first place, also excludes anyone other than the sitting president.

In full, that sentence provides that -- quote -- "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." This is the substantive phrase of the Constitution vesting the conviction and removal power in the Senate, and it contains a clear jurisdictional limitation. The House managers do understand what the word president means for the purposes of other constitutional provisions. And so they should understand this limitation as well.

Only a sitting president is referred to as the president of the United States in the Constitution. And only a sitting president may be impeached, convicted and removed upon a trial in the Senate. The president in Article 2, Section 4, and the president in Article 1, Section 3 identify the same person.

If the accused is not the president in one, he is not the president in the other. No sound textual interpretation -- I emphasize textual -- no sound textual interpretation principle permits a contrary reading. In the words of the Supreme Court, it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.

Unwittingly or unwillingly, as it may be, Senate Democrats in their announcement that Senator Leahy is presiding have already taken their position on this matter. The accused is not the president. The text of the United States Constitution, therefore, does not vest the Senate with the power to try him and remove him, a factual nullity. He can't be removed from something -- or disqualify him, a legal nullity, as if he were the president.

House managers contend the Senate has jurisdiction over this impeachment because, despite the fact that he's no longer the president, the conduct that the former president is charged occurred -- occurred while he was still in office.

That argument does not in any way alter the Constitution's clear textual identification of the president. House managers justify their strained argument by noting that the Constitution's impeachment provisions are properly understood by reference to this overarching constitutional plan.

But with that very justification in mind, their argument fails once again. In an impeachment, it is the accused's office that permits the impeachment. Ceasing to hold that office terminates the possibility and the purpose of impeachment.


Private persons may not be impeached in America. And so they ask you to look back at the British model. The Constitution, as I say, does not make private citizens subject to impeachment. The founders rejected the British model that allowed Parliament to impeach anyone, except for the king.

And so they limited impeachment to certain public officials, including presidents, in our country.

Next on the textual front, the primary, in fact, the only required remedy of conviction is removal. Article 2, Section 4, straightforward rule, whenever a civil officer is impeached and convicted for high crimes and misdemeanors, they shall be removed.

It is undeniable that, in this instance, removal is moot in every possible regard. Removal is a factual and legal impossibility. Yet the article of impeachment itself -- read it -- in the wherefore clause, it calls for removal. This is one reason why impeachment proceedings are different from ordinary trials, and why the Constitution pointedly separates the two.

In ordinary criminal jurisprudence, a person convicted of public crimes while he or she was in office may still be punished even though they no longer hold that office. Not so with impeachment. In the Senate impeachment trial, conviction means and requires removal. And conviction without a removal is no conviction at all.

Only upon a valid conviction and its requisite, in forcible removal, may the additional judgment of disqualification plausibly be entertained. Presidents are impeachable because presidents are removable. Former presidents are not because they cannot be removed.

The Constitution is clear. Trial by the Senate sitting as a court of impeachment is reserved for the president of the United States, not a private citizen who used to be president of the United States. Just as clear, the judgment required upon conviction is removal from office. And a former president can no longer be removed from office.

"The purpose, text and structure of the Constitution impeachment clauses confirm this intuitive and commonsense understanding." So wrote Judge Michael Luttig, former judge on the United States Court of Appeals for the Fourth Circuit.

And, indeed, there are state court decisions that analyze this very same language and conclude that impeachment can only be entertained against an existing officer subject to removal, in State vs. Hill from Nebraska, and Smith vs. Brantley, a 1981 decision from the Florida Supreme Court.

This is the first time that the United States Senate has ever been asked to apply the Constitution's textual identification of the president and the impeachment provisions to anyone other than the sitting president of the United States.

And, of course, most significantly from a textual approach, the term specifically used is the president, not a president, and there can be only one president, the incumbent, at a time.

Judge Luttig relies on this textual reading for his firm conclusion that a former president cannot be impeached or convicted. Consider the alternative, as Robert Delahunty and Professor John Yoo have.

If Mr. Trump can be convicted as the president, the language the Constitution uses, then why is he not still the president under the commander in chief clause, for example?

They are joined by Professor Alan Dershowitz and University of Chicago Professor Richard Epstein in their focus and conclusion. They point out the dangers of an approach that deviates from a focus on the text, for there -- if there is no temporal limitation.

That's what they have suggested to you. Remember, you can go back in time and impeach any civil officer who ever served for anything that occurred during the course of their service time immemorial.

With the House managers' position, the concept necessarily includes all former executive officers and judges, including perhaps the impeachment now of Jimmy Carter for his handling of the Iran hostage scandal, as one example. That flows logically from their argument without any hesitation.

Further, they ask, why not then countenance a broad reading of other terms? When I say they ask, I mean these experts who have opined on this.

Why not then countenance a broad of other terms, such as terms like high crimes and misdemeanors, however broadly construed, are intended to be exclusively the only kind of conduct intended as impeachable?

They conclude, these experts, that by writing that a nontextual impeachment power would undermine the Constitution's effort to make the president independent of Congress, a central goal of the founding fathers.


The authors convincingly argue for textual analysis over nontextual analysis -- over nontextual reliance on a presentation of history, suggesting that, if one's presentation of history were to control, it would expressly permit conduct contrary to the expressed language leading to clearly unintended results.

I must tell you that I've spoken to Judge Ken Starr at some length over this past week about this, and this is a -- this textual approach is something he, too, feels very strongly about. I also happen to be friendly with Chuck Cooper, by the way, who's a fine person, also happens to be a person who has strong animist against President Trump.

But Chuck Cooper is a fine lawyer and a fine person, as I'm sure our friends from Alabama and -- no. As we have already discussed, the risks -- risks to the institution of the presidency and to any and all past officers is limited only by ones imagination.

The weakness of the House managers case is further demonstrated by their reliance of the unproven assertion that if President Trump is not impeached, future officers who are impeached will evade removal by resigning, either before impeachment or a Senate trial.

For example, they contend, citing various law professors, that "any official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate -- the Senate's final conviction vote."

This argument is a complete canard. The constitution expressly provides in Article 1 section 3 Clause 7 that a convicted party, following impeachment, shall nevertheless be liable and subject to inditement, trial, judgment and punishment, according to law, after removal.

Clearly, a formal -- a former civil officer who's not impeached is subject to the same. We have a judicial process in this country. We have an executive -- an investigative process in this country, to which no former office helder -- holder is immune.

That's the process that should be running its course. That's the process the billet of attainder tells us is the appropriate one for investigation, prosecution and punishment. With all of that attributes that that branch, we're missing it by two Articles here that in the Article 3 courts provide.

They provide that kind of appropriate adjudication. That's accountability. There are appropriate mechanisms in place for full and meaningful accountability, not through the legislature, which does not and cannot offer the safeguards of the judicial system, which every private citizen is constitutionally entitled.

But more to the point here, their argument does nothing to empower a different reading of the Constitution's plain text, that is one that reads the president in one provision to include former presidents, but reads the president in the other provision to mean only the sitting president.

Second, this red herring of an argument also fails because the former president did not resign, even amid calls for -- by his opponents that he do so. As a result, the Senate need not decide whether it possesses the power or jurisdiction to try and convict a former president who resigned or how it might best proceed to effectuate justice in such a case. That's not this case.

The plain meaning of the Constitution's text, faithfully and consistently applied, should govern whether the United States Senate is vested by the Constitution with the power to convict a private citizen of the United States. It is not.

The House managers posit in their trial memorandum that despite the fact that the primary and only necessary remedy upon conviction, removal, is illegal nullity, this late impeachment trial is appropriate because the other secondary optional remedy that the Senate is not even required to consider and which only takes effect upon a later separate vote, disqualification from future office, can still theoretically be implied -- applied to a former president.

The managers contend Article II Section 4 states a straightforward rule, whenever a civil officer is impeached and convicted for high crimes and misdemeanors, they shall be removed. Absolutely nothing about this rule implies, let alone requires, that former officials who can still face disqualification are immune from impeachment and conviction.

That's what they say, they told you that today. In other words, so the argument goes, a president no longer holding office does not moot the entirety of remedies affording by impeachment. This, however, also flies in the face of both a plain meaning of the text and the cannons of statutory interpretation. First of all, the managers, once again, simply choose to ignore the text. Even in the passage that the managers cite, the word shall does, to put it mildly, imply a requirement, an imperative such that an impeachment which removal would be impossible, is invalid. Shall means shall.


The Supreme Court has made clear when a statute uses the word shall, Congress' imposed and mandatory duty upon the subject of the command, as in shall remove. Indeed, the mandatory shall normally creates an obligation impervious to judicial discretion and wherever the constitution commands, discretion terminates, shall, means mandatory, and shall be removed is not possible for a former officer no longer in office, impeachment cannot apply. Now here's the "and" argument, you may have heard about, read about if you follow such things.

This is another one, Judge Starr is big on and many of the textual scholars have written about, managers critically ignore this language, in Article 1, Section 3, Clause 7 which states that judgment in cases of impeachment shall not extend further than to removal of office, and disqualification -- sorry -- from office, comma, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

Ordinarily, as in everyday English -- English, use of the conjunctive, and, in a list means that all of the listed requirements must be satisfied, while use of the disjunctive, or, means that only one of the listed requirements needs to be satisfied. Judge Kenneth Starr subscribed strongly to this argument and understands the comment (ph) to provide further support for the reading.

Judge Michael Ludwig, again, recently argued the constitution links the impeachment remedy of disqualification from future office with a remedy of removal from the office that person currently occupies. The former remedy does not apply in situations where the later is unavailable. Conviction and removal are inextricably intertwined, if removal no longer is possible, neither is an impeachment conviction.

Judge Ludwig's view is consistent with that of just -- Joseph Story -- Justice Joseph Story and his famous commentaries on the constitution wherein Story -- Justice Story analyzed impeachment is inapplicable to officials who have left their position because removal, a primary remedy, if the impeachment process authorizes is no longer necessary. Judge Story -- Justice Story noted that he's not coming to a -- a firm posit (ph) on this, this is his belief and this is his thought process.

There's also much force in the remark that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender as is secure the state against gross official misdemeanors, it touches neither his person nor his property but simply divests him of his political capacity. Professor Philip Bobbitt, now, this is -- I have to say this is insulting, we heard earlier today that we don't cite any scholars. Professor Philip Bobbitt is the distinguished Wexler Professor at Columbia University who along with Professor Charles Black wrote the handbook on impeachment used for many, many years. He is a constitutional expert on impeachment. He has written that there's little discussion in the historical record surrounding the precise question of whether a person no longer a civil officer can be impeached and in light of the clarity of the text, this is hardly surprising, Professor Bobbitt wrote.

Professor Bobbitt, by the way, who has a rich family history in the Democratic Party, LBJ, also asserted the following, as recently as January 27, 2021 arguing against holding this trial, he said quote, "there's no authority granted to Congress to impeach and convict persons who are not civil officers of the United States. It's as simple as that but simplicity doesn't mean unimportance," Professor Bobbitt wrote, "limiting Congress to it's specified powers is a crucial element in the central idea of the United States Constitution, putting the state under law."

Professor Bobbitt and former Stanford Professor -- University law professor, Richard Danzig have remarked that impeachments principle purpose as the 66th of the Federalist Papers makes clear, is to check the encroachments of the executive, trial by jury, rules of evidence, and other safe guards are put aside, they write, because of the need to protect the published -- public from further abuse of office.

Similar yesterday -- similarly yesterday Professor Eugene Kontorovich wrote, "the constitution provides that the impeachment process is to be used to remove all civil officers of the United States. That is people holding a government position." Yet in the case of Mr. Trump, the House is reading the constitution as if it said the process applies to all civil officers of the United States and people who aren't civil officers but once were." Exactly, what it does not say.

We've been told by the house managers about mis -- miscitations in our brief. I'd like to draw your attention to page 37. This a substantive misrepresentation to you. I would respectfully suggest and it shows -- reflects to me a very different view of democracy, a fear of democracy.


They wrote on page 37 of their brief that the framers -- I'm paraphrasing the first part -- the framers themselves would not have hesitated to convict on these facts. "Their world view", this is a quote now, "was shaped by a study of classical history, as well as a lived experience of resistance and resolution. They were aware of the danger opposed by opportunists who incited mobs to violence for political gain. They drafted the constitution to avoid such thuggery, which they associated with the threat of civil disorder and early assumption of power by a dictator."

The citation is 178, Bernard Bailyn, The Ideological Origins of the American Revolution, that's this book. Professor Bailyn, when he gave this description of the threat of civil disorder and the early assumption of power by a dictator and thuggery was referring to early colonists (ph) view toward democracy.

They feared democracy, that's what they call thuggery, democracy because it's an elitist point of view, an elitist, political point of view. We don't fear democracy, we embrace it. In summing up let's be crystal clear on where we stand and why we are here. The singular goal of the house managers and house leadership in pursuing the impeachment conviction of Donald J. Trump is to use these proceedings to disenfranchise at least 74 million Americans with whom they viscerally disagree.

And to ensure that neither they, nor any other American ever again can cast a vote for Donald Trump. And if they convince you to go forward, their ultimate hope is that this will be a shot across the bow for any candidate for public office who would dare to take up a political message that is very different from their own political point of view as the direction in which they wish to take our country.

Under our constitution this body and the impeachment process must never be permitted to be weaponized for partisan, political purposes. This article of impeachment must be dismissed for lack of jurisdiction based on what we have discussed here today and what's in our brief. The institution of the presidency is at risk unless a strong message is sent by the dismissal of the article of impeachment.

Before we close, I want to leave you with two thoughts. One was expressed by Abraham Lincoln, he comes to mind first because of the way in which our nation is now divided, we must learn from his times. He had a simple but important message about the paramount importance of doing what is right.

Mr. Lincoln said, "stand with anybody that stands right, stand with him when he is right, and part with him when he goes wrong. In both cases you are right. In both cases you oppose the dangerous extremes. In both cases you stand on moral ground and hold the ship level and steady. In both you are national and nothing less than national."

And the second message from one of Mr. Lincoln's favorite poets, who wrote in 1849 at a time fraught with division and risk for even more. The message from that other time of division is a call for hope and unity to bring strength that has special meaning today.

Poet Longfellow wrote,

"Sail forth -- Sail forth into the sea, O ship!

Through wind and wave, right onward steer!

The moistened eye, the trembling lip,

Are not the signs of doubt or fear.

Sail forth into the sea of life,

O gentle, loving, trusting wife,

And safe from all adversity Upon the bosom of that sea

Thy comings and thy goings be!

For gentleness and love and trust

Prevail o'er angry wave and gust;

And in the wreck of noble lives

Something immortal still survives!

Thou, too, sail on, O Ship of State!

Sail on, O Union, strong and great!

Humanity with all its fears,

With all the hopes of future years,

Is hanging breathless on thy fate!

We know what Master laid thy keel,

What Workmen wrought thy ribs of steel,

Who make each mast, and sail, and rope,

What anvils rang, what hammers beat,

In what a forge and what a heat

Were shaped the anchors of thy hope!

Fear not each sudden sound and shock,

'Tis of the wave and not the rock;

'Tis but the flapping of the sail,

And not a rent made by the gale!

In spite of rock and tempest's roar,

In spite of false lights on the shore,

Sail on, not fear to breast the sea!

Our hearts, our hopes, are all with thee,

Our hearts, our hopes, our prayers, our tears,

Our faith triumphant o'er our fears,

Are all with thee, - are all with thee!"