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

Aired February 9, 2021 - 16:00   ET




Imagine the potential consequences for civil officers you know and who you believed served so honorably, but who, in the view of a future Congress, might one day be deemed to be impeachment-worthy. Imagine it now, because your imagination is the only limitation.

The House managers tell you a correct reading of the impeachment power under the Constitution is that it has no temporal limit and can reach back in time without limitation to target anyone who dared to serve our nation as a civil officer.

Now, add that to their demand that your members -- that you members put your imprimatur on the snap impeachment they returned in this case and can do again in the future, if you endorse it by going forward with this impeachment trial.

This is an untenable combination that literally puts the institution of the presidency directly at risk, nothing less. And it does much more. Under their unsupportable constitutional theory and tortured reading of the text, every civil officer who has served is at risk of impeachment if any given group elected to the House decides that what was thought to be important service to the country when they served now deserves to be canceled.

They have made clear in public statements that what they really want to accomplish here, in the name of the Constitution, is to bar Donald Trump from ever running for political office again. But this is an affront to the Constitution, no matter who they target today.

It means nothing less than the denial of the right to vote and the independent right for a candidate to run for elective political office, guaranteed by the first and 14th Amendments to the United States Constitution, under the guise of impeachment as a tool to disenfranchise.

Perhaps my friend put the situation simply and sharply into focus last week on his radio show. My friend is a distinguished lawyer who served as an ambassador to former President Obama and has friends among you. He described himself to his listeners as a dyed-in-the-wool lifelong Democrat. But, he said, the idea of 100 people in these circumstances deciding

that tens of millions of American voters cannot cast their vote for their candidate for president ever again is unthinkable. And it truly should be.

I will discuss today several reasons this matter should not and must not proceed, why the Senate lacks jurisdiction to conduct this trial of a former president, a president no longer in office and now a private citizen. Any single reason in our trial memorandum or discussed today suffices.

But I want to start with the discussion of the fundamental due process lacking from the start, and that would last through the end if this goes forward, because it is this irretrievably flawed process and its product, a dangerous snap impeachment, that brings us here and that threatens to send a message in the future that we will all regret forever and that stain this body, which, up to now, our founding fathers believed was uniquely suited for the most difficult task of conducting an impeachment trial, as Mr. Hamilton wrote in Federalist 65.

These aren't just niceties. I make no apology for demanding, in your name, in the name of the Constitution, that the rights to due process guaranteed under the Constitution are adhered to in a process as serious as this in our national lives.

The denial of due process in this case, of course, starts with the House of Representatives. In this unprecedented snap impeachment process, the House of Representatives denied every attribute of fundamental constitutional due process that Americans correctly have come to believe is part of what makes this country so great.

How and why did that happen? It is a function of the insatiable lust for impeachment in the House for the past four years. Consider this.


REP. JAMIE RASKIN (D-MD): I want to say this for Donald Trump, who I may well be voting to impeach.

KEITH ELLISON, MINNESOTA ATTORNEY GENERAL: Donald Trump has already done a number of things which legitimately raise the question of impeachment.

REP. MAXINE WATERS (D-CA): I don't respect this president and I will fight every day until he is impeached.


REP. JOAQUIN CASTRO (D-TX): That is grounds to start impeachment proceedings. Those are grounds to start impeachment. Those are grounds to start impeachment proceedings? Yes, I think that's grounds to start impeachment proceedings.

REP. AL GREEN (D-TX): I rise today, Mr. Speaker, to call for the impeachment of the president of the United States of America. WATERS: I continue to say, impeach him! Impeach 45! Impeach 45!


UNIDENTIFIED MALE: So, we're calling upon the House to begin impeachment hearings immediately.


VAN JONES, CNN POLITICAL COMMENTATOR: On the impeachment of Donald Trump, would you vote yes or no?

REP. ILHAN OMAR (D-MN): I would vote yes.

REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): I would vote -- I would vote to impeach.

REP. RASHIDA TLAIB (D-MI): Because we're going to go in there, we're going to impeach the mother (EXPLETIVE DELETED).

UNIDENTIFIED MALE: But the fact is, I introduced articles of impeachment in July of 2017.

GREEN: If we don't impeach this president, he will get reelected.

UNIDENTIFIED MALE: Requires me to be for impeachment, have impeachment hearings. He needs the scarlet I on his chest.

SEN. CORY BOOKER (D-NJ): Representatives should begin impeachment proceedings against this president.

SEN. ELIZABETH WARREN (D-MA): It is time to bring impeachment charges against him. Bring impeachment charges.

REP. JERROLD NADLER (D-NY): My personal view is that he richly deserves impeachment.

TLAIB: I'm here at an impeachment rally, and we are ready to impeach the...



SCHOEN: The relevant timeline in the House reveals the rush to judgment.

On the day following the January 6 riot, the House leadership cynically sensed a political opportunity to score points against the outgoing then President Trump. And the speaker demanded that Vice President Pence invoke the 25th Amendment, threatening immediate impeachment for the president if Mr. Pence did not comply with this extraordinary and extraordinarily wrong demand.

Four days later, on January 11, 2021, the instant article of impeachment was introduced in the House. Speaker Pelosi then gave Vice President -- the vice president another ultimatum, threatening to begin impeachment proceedings within 24 hours if he did not comply.

Vice President Pence rejected Speaker Pelosi's demand, favoring instead adherence to the Constitution and the best interests of the nation over a politically motivated threat.

On January 12, Speaker Pelosi announced who the nine impeachment managers would be. And on January 13, 2021, just days after holding a press conference to announce the launching of an inquiry, the House adopted the article of impeachment, completing the fastest impeachment inquiry in history and according President Trump no due process at all, over strong opposition, based in large part on the complete lack of due process.

To say there was a rush to judgment by the House would be a grave understatement. It is not as if the House members who voted to impeach were not mightily warned about the dangers to the institution of the presidency and about our system -- and to our system of due process. They were warned in the strongest of terms from within their own ranks, adamantly, clearly, and in no uncertain terms not to take this dangerous snap impeachment course.

Those warnings were framed in the context of the constitutional due process that was denied here. Consider the warnings given by one member during the House proceedings, pleading with the other members to accord this decision the due process the Constitution demands.

This is Representative Cole of Oklahoma: "With only one week to go in his term, the majority is asking us to consider a resolution impeaching President Trump. And they do so knowing full well that, even if the House passes the resolution, the Senate will not be able to begin considering these charges until after President Trump's term ends. I can think of no action that House can take that is more likely to further divide the American people than the action we are contemplating today."

"Emotions are clearly running high, and political divisions have never been more apparent in my lifetime," Representative Cole said.

Mr. Cole's words on the floor emphasizing the care that must be taken with respect to the consideration of an article of impeachment echoed the concerns by our founding fathers on this subject.

Listen to this from Mr. Hamilton in Federalist No. 65 -- quote -- "A well-constituted court for the trial of impeachment is an object not more to be desired than difficult to be obtained in a government wholly elective. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community and to divide into parties more or less friendly or inimical -- inimical to the accused.

"In many cases, it will connect itself with preexisting factions and will enlist all their animosities, partialities, influence, and interest on one side or on the other. In such cases, there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt," prescient thinking by Mr. Hamilton, as we see often. And what I say to you is a proof of the need for due process, based on

the critically serious nature of the singular role the impeachment process has in our government. Mr. Hamilton characterized the consideration of an impeachment in these terms: "The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs speak for themselves" -- this, too, in Federalist 65.

Now back to the House and the warnings against this rushed judgment in this case.

Mr. Cole of Oklahoma again.


In the name of healing, a path forward, he said, our people so desperately need, he warned that -- quote -- "The House is moving forward erratically, with a truncated process that does not comport with a modern practice, and that will give members no time to contemplate the serious nature of action before us."

Mr. Cole emphasized to his colleagues that such care must be taken with the consideration of an article of impeachment -- quote -- "in order to ensure that the American people have confidence in the procedures the House is following, and because the presidency itself demands due process in the impeachment proceedings."

Congressman Cole continued: "Unfortunately" -- this is a quote -- "the majority has chosen to race to the floor with a new article of impeachment, foregoing any investigation, any committee process, or any chance for members to fully contemplate this course of action before proceeding."

Mr. Cole complains that: "The majority is failing to provide the House with an opportunity to review all the facts, which are still coming to light, to discuss all the evidence, to listen to scholars, to examine the witnesses, and to consider precedents."

He's noted further: "This is not the type of robust process we have followed for every modern impeachment. And the failure to do so does a great disservice to this institution and to this country," Mr. Cole said.

Mr. Cole complained right on the House floor that: "Rather than following the appropriate processes," he said, "the House has used in every modern impeachment, the majority is rushing to the floor, tripping all over themselves, in their rush to impeach the president -- impeach the president a second time."

And in Mr. Cole's words, it was doing so to -- quote -- "settle scores."

And he warned that the snap impeachment approach would cause great division as the country looks ahead to the start of a new administration. He said to them: "In a matter as grave and consequential as impeachment, shouldn't we follow the same process we have used in every modern impeachment, rather than rushing to the floor?"

And he implored them: "On behalf of generations of Americans to come, we need to think more clearly about the consequences of our action today."

And Mr. Cole then reached across the aisle and credited a member of this body, Senator Manchin, with having voiced similar sentiments about how ill-advised this rushed process was, suggesting that the underlying events were a matter for the judicial system to investigate, not one for a rushed political process.

Finally, Mr. Cole admonished his fellow House members, telling them: "We need to recognize that we are following a flawed process."

The alarm Mr. Cole sounded went unheeded.

Now let us consider the process in the House that actually was due. The House managers assert in a memorandum that the House serves as a grand jury and prosecutor under the Constitution. They told you that again today.

If this is accurate, then they highlight the complete failure to adhere to due process. One should not diminish the significance of impeachment's legal aspects, particularly as they relate to the formalities of the criminal justice process. It is a hybrid of the political and legal, a political process moderated by legal formalities.

This is a quote, Richard Broughton (ph).

To Fifth Amendment to the United States Constitution provides, in relevant part, that no person shall be deprived of life, liberty or property without due process of law. The Supreme Court long ago recognized in Mathews v. Eldridge that, at its core, due process is about what we all want, what we all have the right to demand, fundamental fairness.

One scholar, Brian Owsley, has written that the impeachment process should and does include some of the basic safeguards for the accused that are observed in a criminal process, such as fairness, due process, presumption of innocence, and proportionality, basic American values.

And, of course, we know that the Supreme Court has recognized that due process protection attend congressional investigations. While Congress is empowered to make its own rules of proceeding, it may not make rules ignore -- that ignore constitutional restraints or violate fundamental rights.

Excuse me.

While the case law is limited in terms of spelling out what due process looks like in impeachment hearings, and, of course, in the Nixon case -- Walter, not Richard -- we know that there's a great deal of leeway afforded Congress with respect to its impeachment rules.

It is clear that the fundamental principles that underlie our understanding of what due process must always look like apply.


In Hastings vs. United States, D.C. court case, reversed -- vacated on different grounds, they addressed the matter, clearly concluding that the due process applies to impeachment proceedings, and that it imposes an independent constitutional constraint on how the Senate exercises its sole power to try all impeachments under Article 1, Section 3, Clause 6.

The court wrote in Hastings: "Impeachment is an extraordinary remedy. As an essential element of our constitutional system of checks and balances, impeachment must be invoked and carried out with solemn respect and scrupulous attention to fairness. Fairness and due process must be the watchword whenever a branch of the United States government conducts a trial, whether it be in a criminal case, a civil case or a case of impeachment."

A 1974 Department of Justice memo suggested the same view, opining that -- quote -- "Whether or not capable of judicial enforcement, due process standards would seem to be relevant to the manner of -- manner of conducting an impeachment proceeding," more specifically, as the Hastings court described it, one of the key principles that lies at the heart of our constitutional democracy, again, fairness.

The Supreme Court's precedents established the general rule -- rule that individuals must receive notice and an opportunity to be heard before the government deprives them of a constitutionally protected interest.

It is also true that, in any proceeding that may lead to deprivation of a protected interest, it requires fair procedures commensurate with the interests at stake.

Impeachment proceedings plainly involve deprivations of property and liberty interests protected by the Due Process Clause. And the House surely seeks to strip Donald Trump of his most highly cherished constitutional rights, including the right to be eligible to hold public office again, should he so choose.

Due process must apply. And, at a minimum, due process in the impeachment process must include that the evidence must be disclosed to the accused, and the accused must be permitted an opportunity to test and confront the evidence, particularly through the rights to confront and cross-examine witnesses, which have long been recognized as essential to due process.

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross- examine.

It is unfathomable that the framers, steeped in the history of Anglo- American jurisprudence, would create a system that would allow the chief executive and commander in chief of the armed forces to be impeached based on a process that developed evidence without providing any of the elementary procedures that the common law developed over centuries for ensuring the proper testing of evidence in an adversarial process.

We would never countenance such a system in this country.

Current members of the House and Senate leadership are themselves on record repeatedly confirming these procedural due process requirements. Indeed, Congressman Nadler is on record asserting that, in the context of a House impeachment investigation, due process includes -- quote -- "the right to be informed of the law, of the charges against you, to call your own witnesses, and to have the assistance of counsel."

Then President Trump was not given any semblance of the due process Congressman Nadler clearly believes he deserves, based on the congressman's description of due process that must be afforded to an accused in an impeachment proceeding, as reflected in a statement he made relating to another impeachment in 1998.

No reason was found for the apparent change in the congressman's point of view with respect to the two objects of the impeachment at issue. These fundamental attributes of due process have been honored as required parts of modern impeachment protocol since at least 1870.

It's not seriously debatable, nor should be -- nor should it be by any American legislator.

In spite of all this, the House leadership defied all the norms and denied the then president all of his basic and constitutionally protected rights. For then President Donald Trump, the House impeachment procedure lacked any semblance of due process whatever. It simply cannot be credibly argued to the country. And we do not make special rules for different targets.

It's the very integrity of the institution that suffers when we do. And that is what the House leadership knowingly has caused.

A review of the House record reveals that the speaker streamlined the impeachment process, House Resolution 24, to go straight to the floor for a two-hour debate and a vote, without the ability for amendments. The House record reflects no committee hearing, no witnesses, no presentation or cross-examination of evidence, and no opportunity for the accused to respond or even have counsel present to object.

As "The New York Times" recently reported, there were no witness interviews, no hearings, no committee debates, and no real additional fact-finding.


House managers claimed, the need for impeachment was so urgent that they had to rush the proceedings, with no time to spare for a more thorough investigation, or really any investigation at all. But that claim is belied by what happened or didn't happen next. The

House leadership unilaterally and by choice waited another 12 days to deliver the article to this Senate to begin the trial process. In other words, the House leadership spent more time holding the adopted article than it did on the whole process leading up to the adoption of the article.

That intentional delay, designed to avoid having the trial begin while Mr. Trump was still president, led to yet another egregious denial of due process.

Excuse me.

Article 1, Section 3 of our Constitution -- Clause 6 of our Constitution, of course, provides, in pertinent part, that the Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. And when the president of the United States is tried, the chief justice shall preside.

By intentionally waiting until President Trump's -- President Trump's term of office expired before delivering the article of impeachment to the Senate to initiate trial proceedings, Speaker Pelosi deprived then President Trump of the express constitutional right and the right under the Senate's own Rule 4 to have the chief justice of the United States preside over his trial and wield the considerable power provided for in the rules of procedure and practice in the Senate when sitting on impeachment trials.

That power includes, under Rule 5, the presiding officer's exclusive right to make and issue all orders, under Rule 7, to make all evidentiary orders, subject to objections by a member of the Senate.

We say respectfully that this intentional delay by Speaker Pelosi, such that, in the intervening period, President Trump became private citizen Mr. Trump, constitutes a lapse or waiver of jurisdiction here, for Mr. Trump no longer is the president, described as subject to impeachment in Article 1, Section 3, Clause 6, and in Article 2, Section 4.

And this body, therefore, has no jurisdiction as a function of that additional due process violation by Speaker Pelosi.

Moreover, with all due respect, then President Trump suffered a tangible detriment from Speaker Pelosi's actions, which violates not only his rights to due process of law, but also his expressed constitutional right to have the chief justice preside.

That tangible detriment includes the loss of the right to a conflict- free, impartial presiding officer, with all due respect, the very purpose behind requiring the chief justice to preside over the president's impeachment trial, along with the other benefits of having the two branches combined, the chief justice from the judiciary and the Senate, for the impeachment trial of the president, reflected in Federalist 66, one of the reasons the chief justice was chosen for that task. Mr. Trump now faces a situation in which the presiding officer will

serve as both judge, with all the powers that the rules endow him with, and juror with a vote.

And beyond that, the presiding officer, although enjoying a lifelong honorable reputation, of course, has been Mr. Trump's vocal and adamant opponent throughout the Trump administration, and, in fact, in the very matter on trial, the presiding officer, respectfully, already has publicly announced his fixed view before hearing any argument or evidence that Mr. Trump must be convicted on the article of impeachment before the Senate, and, indeed, that members in both parties have an obligation to vote to convict as well.

Nowhere in this great country would any American, and certainly not this honorable providing -- presiding officer, consider this scenario to be consistent with any stretch of the American concept of due process and a fair trial, and certainly not even the appearance of either.

By no stretch of the imagination could any fair-minded American be confident that a trial so conducted would or could be the fair trial promised by the leader.

While most procedural aspects of the Senate impeachment trial may be nonjusticiable political questions, this is not an excuse to ignore what law and precedent clearly require.

The present situation either presents a violation of the constitutional text found in the articles mentioned above that require the chief justice to preside when the president is on trial, or it is a clear denial of due process and fair trial rights for private citizen Trump to face an impeachment trial, so conducted by the Senate.


The impeachment article should be treated as a nullity and dismissed based on the total lack of due process in the House. It should be dismissed because of Speaker Pelosi's intentional abandonment or waiver of jurisdiction, if the House ever acquired jurisdiction.

And the article should be dismissed because the trial in the Senate of a private citizen is not permitted, let alone with the conflicts just described that attend this proceeding.

Finally, on the subject of due process in this matter, I say the following.

This is our nation's sacred Constitution. It has served us well since it was written. And it's been amended only through a careful process. It is a document unique in all the world. It is a foundational part of what makes the United States a beacon of light among the other nations of the world.

It not only has room for tremendous variety of perspectives on the philosophical and political direction our country should take; it encourages the advocacy of our differences.

But we have long held that fundamental to its health and well-being and, therefore, to ours as a nation, is its insistence on due process for every citizen. The emphasis on the right to due process long ago was recognized as its life breath, a primary guarantor of its eternal viability as our political, civic, and national guiding light.

We all well know that there are many systems in other countries around the world that do not offer any semblance of the safeguards our constitutional concept of due process provides. Some of them have chosen their own handbooks, which direct their citizens' conduct, on penalty of death. This is one of them.

There can be no room for due process in such a system as this, or the system would be lost. Snap decisions are required in a system like this to maintain power for one political philosophy over all others in those kinds of systems.

But we, as a nation, have rejected those systems and the kind of snap decisions they demand to maintain control for one party, for one point of view, and for an imposed way of life. We choose to live freely under a Constitution that guarantees our freedom.

Other countries fear those freedoms and seek to ensure adherence to a party line in all civic, political, spiritual and other affairs, and to ensure that the party line is toed. And those systems have no place for due process.

Snap decisions that remove political figures are the norm. Maintaining their systems depend on it. That is not our way in America, and never must be.

We choose in America to live by our Constitution and its amendments and the due process this document demands for every citizen among us. By putting your imprimatur on the snap judgment made in this matter to impeach the president of the United States, without any semblance of due process at every step along the way, puts the office of the president of the United States at risk every single day.

It is far too dangerous a proposition to countenance, and you must resoundingly reject it by sending the message now that this proceeding, lacking due process from start to finish, must end now with your vote that you lack jurisdiction to conduct an impeachment trial for a former president whose term in office has expired, and who is now a private citizen.

So, one reason you must send this message here and now is because of the complete lack of due process that brought this article of impeachment before this body. God forbid we should ever lower our vigilance to the principle of due process.

An impeachment trial of a -- of private citizen Trump held before the Senate would be nothing more nor less than the trial of a private citizen by a legislative body. An impeachment trial by the Senate of a private citizen violates Article 1, Section 9 of the United States Constitution, which provides that no bill of attainder shall be passed.

The bill of attainder, as this clause is known, prohibits Congress from enacting a law that legislative determine -- legislatively determines guilt and inflicts punishment upon an identifiable individual, without provision of the protections of a judicial trial.

A bill of attainder is a legislative act which inflicts punishment without a judicial trial, a judicial trial. 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.