Report: Sen. Patrick Leahy Expected to Preside over Second Trump Impeachment Trial

Breitbart ^ | 01/25/2021 | Joshua Caplan

[ChicagoConservative27]

Sen. Patrick Leahy, President pro tempore of the U.S. Senate, is expected to preside over the upper chamber’s second impeachment trial of President Donald Trump — not U.S. Supreme Court Chief Justice John Roberts — according to CNN and NBC News

[crz]

Here. Is this quote from a radical right winger?

“It is not denied that there may be cases in which a respect to the general principles of LIBERTY, the essential RIGHTS of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an ILLEGITIMATE despotism.”

Name the man who’s opinion that is.

[RummyChick]

I have no desire to interact with you. You lack the ability to rationally discern and want to paint those that do with a broad brush. Please stop posting to me.

[crz]

Uh Huh.

Radical right..

Now call James Madison a radical right winger!!!

[Bubba_Leroy]

This is a completely different situation than Nixon. The issue here is whether Congress can use an impeachment trial as a pretext to pass a bill of attainder against a private citizen as punishment for what was clearly protected speech.

Let’s say that you post something on Free Republic that seriously pisses off some democrats in Congress. They decide to punish you by impeaching you and forcing you to defend yourself in a trial before the Senate, even though you cannot be removed from office because you hold no office. No judicial remedy?

How about if the democrats decide to start impeaching anyone who says anything that they do not like, whether they hold any office or not. Still no judicial remedy?

Under the Constitution, impeachment is the sole method for Congress to forcibly remove someone from executive or judicial office. Because it is a remedy that clearly infringes upon the other two branches of government, it is limited in application and conviction requires a 2/3 vote in the Senate.

When Congress tries to use impeachment against someone who is not in office, as a pretext for passing what would otherwise be an unconstitutional bill of attainder, then there certainly is a judicial remedy. Checks and balances.

[Bubba_Leroy]

From the Nixon v. U.S. summary:

A controversy is nonjusticiable where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it . . . ." Baker v. Carr, 369 U. S. 186, 217.

In this case:

1. There is no texturally demonstrable commitment to the Senate of the right to try private citizens who do not hold any office from which they can be removed. Rather, there is an express Constitutional prohibition against bills of attainder (i.e., an act of Congress declaring a person guilty of some crime and punishing him).

2. There is a clear judicially discoverable and manageable standard for resolving it. Impeachment of an office holder is the only exception to the Constitutional prohibition against bills of attainder. Congress cannot declare that any private citizen is guilty of some crime and then punish him under the pretext of an impeachment trial of someone who is not then the holder of any office from which he can be removed.

[Verginius Rufus]

Thanks. Very interesting.

What a different world it was in 1868. The Senate, or at least some senators, were concerned that "impartial justice should be done" and that it would be clear to mankind that impartial justice had been done. What a quaint concept. It definitely won't be a consideration in February 2021.

[woodpusher]

This is a completely different situation than Nixon. The issue here is whether Congress can use an impeachment trial as a pretext to pass a bill of attainder against a private citizen as punishment for what was clearly protected speech.

The Supreme court has no role to play in any impeachment proceedings and that is the context.

Nobody that matters is making any absurd arguments about a bill of attainder. As such, that is not an issue at all.

In Nixon v. United States, 506 U.S. 224, 232 (1993), the Supreme Court stated:

Petitioner also contends that the word "sole" should not bear on the question of justiciability because Art. II, § 2, cl. 1, of the Constitution grants the President pardon authority "except in Cases of Impeachment." He argues that such a limitation on the President's pardon power would not have been necessary if the Framers thought that the Senate alone had authority to deal with such questions. But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is "[a]n executive action that mitigates or sets aside punishment for a crime." Black's Law Dictionary 1113 (6th ed. 1990) (emphasis added). Authority in the Senate to determine procedures for trying an impeached official, unreviewable by the courts, is therefore not at all inconsistent with authority in the President to grant a pardon to the convicted official.

Charles L. Black, Impeachment, at 29-30:

Now Masons assumption—which was not challenged and which seems clearly right—was that the “bill of attainder” prohibi­tion applied to any congressional actions dealing with the president. If this assumption is right, then it must also be true that the prohibi­tion of “ex post facto” laws—laws making punishable conduct that was not punishable when committed—is equally applicable to Con­gress’s dealings with the president. If this is right—and I would think it right whether Mason had said what he did or not—then we have established another boundary on “high Crimes and Misdemean­ors”: that phrase must not be so interpreted as to make its operation in a given impeachment case equivalent to the operation of a bill of attainder, or of an ex post facto law, or of both.

When a congressman says, in effect, that Congress is entirely free to treat as impeachable any conduct it desires so to treat, he (or she) is giving a good textbook definition of a bill of attainder and an ex post facto law, rolled into one. Our Framers abhorred both these things, and we have never wavered from that abhorrence. It cannot be right for Congress to act toward the president as though these prohibitions did not exist. There may be no way to keep Congress from violating their letter or spirit, but the conscientious congress­man has to feel them, in spirit at least, as bounding and confining the operation of the vague words, “high Crimes and Misdemeanors.”

I say “in spirit,” because the letter of these clauses cannot al­ways apply. As pointed out above, in connection with the question of criminal character of the impeachment proceeding, the words “high Crimes and Misdemeanors” are themselves too vague to satisfy con­stitutional standards of reasonably clear warning, in criminal stat­utes as applied in the ordinary courts; in this technical sense, the application of the quoted phrase to concrete cases must often be “ex post facto” in practical effect. But the spirit and equity of the bill of attainder and ex post facto clauses can to a large extent be followed if we treat as impeachable those offenses, and only those, that a rea­sonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy. The approximation of this result necessitates exploration of some further issues.

Id. at 48-49:

The Senate, after plenary trial and fullest argument of counsel, and after debate among senators on fact and law, votes by a two- thirds majority to convict and remove the president.

The president now appeals to the Supreme Court. The jurisdic­tion of that Court over the appeal is to say the least quite unclear, but it takes jurisdiction anyway. On the merits, the Court disagrees with the House and with the Senate on some point, let us say, as to the meaning of “high Crimes and Misdemeanors,” or on some pro­cedural question of weight (perhaps dividing 5 to 4, perhaps filing nine opinions no five of which espouse the same reasoning). So it puts the impeached and convicted president back in for the rest of his term. And we all live happily ever after.

I don’t think I possess the resources of rhetoric adequate to char­acterizing the absurdity of that position. With what aura of legiti­macy would a thus-reinstated chief magistrate be surrounded? Who would salute? When a respectably dressed Londoner approached the Duke of Wellington, saying “Mr. Smith, I believe,” the Duke replied, “If you believe that, you’ll believe anything.” I would say the same of anyone who can believe that there is hidden away somewhere, in the interstitial silences of a Constitution formed by men of practical wisdom, a command that could bring about such a preposterous re­sult as the judicial reinstatement of a president solemnly convicted, pursuant to the constitutional forms, of “Treason, Bribery, or other high Crimes and Misdemeanors.” (I may say, parenthetically, that if you are one who believes that sound constitutional law cannot make nonsense, or generate absurdities, you can rest on that correct belief and skip the rest of this chapter.)

Id. at 54-55:

I have thought it worthwhile to argue this point fully because, while I cannot conceive that any court would so have lost the fac­ulty of judgment as to try to undo a Senate sentence of removal on impeachment, I think it well that, so far as possible, the fundamen­tal unconstitutionality of such action be publicly accepted, precisely because, as I have briefly pointed out above, the wide diffusion of this concept—that the courts have no role to fill—makes very plain to all the final responsibility of the Senate, on facts and on law. It would be most unfortunate if the notion got about that the Senates verdict were somehow tentative. The crucial senatorial vote should be taken, and should be known to be taken, with full knowledge that there is no appeal. No senator should be encouraged to think he can shift to any court responsibility for an unpalatable or unpopular decision.

The dissemination of the “judicial review” idea could be most unfortunate in another way; if a removed president tried it, and had his case (as would almost surely happen) dismissed for want of ju­risdiction, he might be able, though quite wrongly, to persuade a part of the people that he had been denied his rightful day in court.

I would conclude, then, with a paraphrase of the well-known saying of the country banker, when he was asked about cashing a check for a stranger. He said, “There are ten rules about cash­ing checks for strangers. The first rule is, ‘Never cash a check for a stranger.’ The other nine rules don’t matter.” There are ten rules about judicial review of the judgments of the Senate on impeach­ments. The first rule is that the courts have, in this, no part at all to play. The other nine rules don’t matter.

- - - - - - - - - -

When Congress tries to use impeachment against someone who is not in office, as a pretext for passing what would otherwise be an unconstitutional bill of attainder, then there certainly is a judicial remedy. Checks and balances.

Legal nonsense.

[woodpusher]

2. There is a clear judicially discoverable and manageable standard for resolving it.

There is no judicial review of any impeachment proceeding. There is no judicial role whatsoever. See my #227.

[yoe]

"then there certainly is a judicial remedy. Checks and balances."

Now we know the Left, i.e., the Democrats, The Progressives, the Liberals, The American Communist Party, do not believe in or follow the dictates of our U.S. Constitution...so the remedy is to VOTE them out of office or remove them now for lying in taking their Oath's of Office.

[Bubba_Leroy]

There is no judicial review of any impeachment proceeding. There is no judicial role whatsoever.

So you believe that the party controlling Congress can accuse, try and convict any private citizen for Constitutionally protected speech and bar them from ever holding public office, regardless of whether or not they are then holding or have ever held public office, and there is no right to any judicial review as long as Congress calls it an impeachment.

Okie-dokie.

[Bubba_Leroy]

"[L]legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution." United States v. Brown, 381 U.S. 437, 448-49 (1965) (quoting United States v. Lovett, 328 U.S. 303, 449 (1946)).

"While history thus provides some guidelines, the wide variation in form, purpose and effect of ante-Constitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. 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, or more simply -- trial by legislature." United States v. Brown, 381 U.S. at 442.

[woodpusher]

Now we know the Left, i.e., the Democrats, The Progressives, the Liberals, The American Communist Party, do not believe in or follow the dictates of our U.S. Constitution...so the remedy is to VOTE them out of office or remove them now for lying in taking their Oath's of Office.

There is no judicial remedy for impeachment conviction. The sole, ultimate, and final authority on impeachment is vested in the Legislative branch.

There is no judicial remedy for a certification that a constitutional amendment has been ratified by a sufficient number of states to cause it to be adopted. Leser v. Garnett, 258 U.S. 130 (1922)

As the Legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts. The rule declared in Field v. Clark, 143 U.S. 649 , 669-673, 12 Sup. Ct. 495, is applicable here. See, also Harwood v. Wentworth, 162 U.S. 547, 562 , 16 S. Sup. Ct. 890.

When the action of another branch is conclusive, the Court cannot review it.

For matters where authority is conferred solely upon the Legislative branch, it is a political matter and the Court does not have jurisdiction, whether the judges are Republicans, Democrats, The Progressives, The Liberals, or the American Communist Party.

The Constitution created Congress. Pursuant to the Constitution, Congress created the Judicial branch. The Constitution provides, "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulatons as the Congress shall make." Congress can, and has, stripped the Supreme Court of jurisdiction to issue an opinion deciding a case it had already heard. Ex parte McCardle, 73 U.S. 318 (1868).

If the Supreme Court were ever to claim jurisdiction to review a Senate impeachment conviction, Congress could strip the Court of jurisdiction to proceed with that, or any other appellate case. Also, the Congress has the power to reduce the number of justices to one, and to eliminate all Federal courts except the Supreme Court.

There is no violation of anyone's rights where SCOTUS does not entertain a case over which it has no jurisdiction. On impeachment convictions, there is no court jurisdiction. The Court has no authority to decide the case.

The problem does not lie with some specious claim of a bill of attainder. It is the bogus charge itself. There was no insurrection, there was no incitement to insurrection. The charge is political garbage. It has no basis. The Democrats are using the impeachment process as a political tool and evading judicial review. It is decidedly wrong, but it is a demonstration of the raw power of an unrestrained Congress.

Black's Law Dictionary, 11th Ed., 2019.

insurrection. (15c) A violent revolt against an oppressive authority, usu. a government.

“A popular tumult is a disorderly gathering of people who refuse to listen to the voice of their superiors, whether they be disaffected towards their superiors themselves or merely towards certain private individuals. These violent movements occur when the people believe themselves harassed, and they are more often caused by tax-collectors than by any other class of public officers. If the anger of the people is directed particularly against the magistrates or other officers invested with the public authority, and if it is carried so far as to result in positive disobedience or acts of violence, the movement is called a sedition. And when the evil extends and wins over the majority of the citizens in a town or province, and gains such strength that the sov­ereign is no longer obeyed, it is usual to distinguish such an uprising more particularly by the name of an insurrection." Charles G. Fenwick, The Law of Nations or the Principles of Natural Law 336 (1916).

“Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society.” 77 C.J.S. Riot; Insurrection § 29, at 579 (1994).

C.J.S. stands for Corpus Juris Secundum, a legal encyclopedia.

[woodpusher]

So you believe that the party controlling Congress can accuse, try and convict any private citizen for Constitutionally protected speech and bar them from ever holding public office, regardless of whether or not they are then holding or have ever held public office, and there is no right to any judicial review as long as Congress calls it an impeachment.

Had I said that, you would quote me having said it. You prefer your strawman nonsense about crap nobody has ever claimed.

Impeachments are for public officials. Today, the Senate reaffirmed their long standing precedent that they can impeach a former public official who has left office.

[woodpusher]

United States v. Brown, 381 U.S. 437, 448-49 (1965) (quoting United States v. Lovett, 328 U.S. 303, 449 (1946)).

Your irrelevant nonsense has nothing to do with any judicial review of an impeachment proceeding in the Senate.

However, you are invited to cite a SCOTUS case overturning an impeachment by the Senate, or indeed, any case where SCOTUS took jurisdiction to rule on the merits of any impeachment by the Senate. Any case from the last 230 years should do.

https://tile.loc.gov/storage-services/service/ll/usrep/usrep381/usrep381437/usrep381437.pdf

United States v. Brown, 381 U.S. 437 (1965)

Respondent was convicted under § 504 of the Labor-Management Reporting and Disclosure Act of 1959, which makes it a crime for one who belongs to the Communist Party or who has been a member thereof during the preceding five years wilfully to serve as a member of the executive board of a labor organization. The Court of Appeals reversed, holding § 504 violative of the First and Fifth Amendments. Held: Section 504 constitutes a bill of attainder and is therefore unconstitutional. Pp. 441-462.

[...]

(f) A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discourag-ing future conduct.

Section 504 of the Labor-Management Reporting and Disclosure Act of 1959 was a law. An impeachment charge is not a law. When sitting for an impeachment trial, the Senate sits as an impeachment court, not as a legislative body. They are not processing a piece of legislation, making law.

I note your heartfelt defense of a decision holding that one who belongs to the Communist Party has rights and can not just be removed from the executive board of a labor organization. It is good to see somebody is looking out for the Communists.

[Bubba_Leroy]

What you said was: "There is no judicial review of any impeachment proceeding. There is no judicial role whatsoever."

That is incredibly overbroad and utterly unsupportable, as I clearly demonstrated. Feel free to continue to rant. It is what trolls do when they have no other argument. I have no interest in responding to you any further. It is like trying to argue with a fence post.

[woodpusher]

What you said was: "There is no judicial review of any impeachment proceeding. There is no judicial role whatsoever."

That is incredibly overbroad and utterly unsupportable, as I clearly demonstrated. Feel free to continue to rant. It is what trolls do when they have no other argument. I have no interest in responding to you any further. It is like trying to argue with a fence post.

What I cited and quoted the unanimous Supreme Court and the preeminent scholar on impeachment from his authoritative book on the subject.

Ignorant fools argue that the unanimous Supreme Court and the preeminent scholar on a specific area of law are wrong and they, in their legal ignorance, are right. To claim you have "demonstrated" that your absurd legal notion is correct, you would have to show that sometime in the past 2+ centuries, the judicial branch has at least considered a challenge to an impeachment on the merits. You can neither cite such a case, nor can you cite a lawbook which agrees with your absurdity.

I previously cited and quoted the unanimous Supreme Court and Charles L. Black, and will do so again. As the preeminent impeachment scholar wrote of the notion of the Court assuming jurisdiction to overturn a Senate impeachment conviction of a President, "I don’t think I possess the resources of rhetoric adequate to characterizing the absurdity of that position."

In Nixon v. United States, 506 U.S. 224, 232 (1993), the Supreme Court stated:

Petitioner also contends that the word "sole" should not bear on the question of justiciability because Art. II, § 2, cl. 1, of the Constitution grants the President pardon authority "except in Cases of Impeachment." He argues that such a limitation on the President's pardon power would not have been necessary if the Framers thought that the Senate alone had authority to deal with such questions. But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is "[a]n executive action that mitigates or sets aside punishment for a crime." Black's Law Dictionary 1113 (6th ed. 1990) (emphasis added). Authority in the Senate to determine procedures for trying an impeached official, unreviewable by the courts, is therefore not at all inconsistent with authority in the President to grant a pardon to the convicted official.

Charles L. Black, Impeachment, at at 48-49:

The Senate, after plenary trial and fullest argument of counsel, and after debate among senators on fact and law, votes by a two- thirds majority to convict and remove the president.

The president now appeals to the Supreme Court. The jurisdic­tion of that Court over the appeal is to say the least quite unclear, but it takes jurisdiction anyway. On the merits, the Court disagrees with the House and with the Senate on some point, let us say, as to the meaning of “high Crimes and Misdemeanors,” or on some pro­cedural question of weight (perhaps dividing 5 to 4, perhaps filing nine opinions no five of which espouse the same reasoning). So it puts the impeached and convicted president back in for the rest of his term. And we all live happily ever after.

I don’t think I possess the resources of rhetoric adequate to char­acterizing the absurdity of that position. With what aura of legiti­macy would a thus-reinstated chief magistrate be surrounded? Who would salute? When a respectably dressed Londoner approached the Duke of Wellington, saying “Mr. Smith, I believe,” the Duke replied, “If you believe that, you’ll believe anything.” I would say the same of anyone who can believe that there is hidden away somewhere, in the interstitial silences of a Constitution formed by men of practical wisdom, a command that could bring about such a preposterous re­sult as the judicial reinstatement of a president solemnly convicted, pursuant to the constitutional forms, of “Treason, Bribery, or other high Crimes and Misdemeanors.” (I may say, parenthetically, that if you are one who believes that sound constitutional law cannot make nonsense, or generate absurdities, you can rest on that correct belief and skip the rest of this chapter.)

Id. at 54-55:

I have thought it worthwhile to argue this point fully because, while I cannot conceive that any court would so have lost the fac­ulty of judgment as to try to undo a Senate sentence of removal on impeachment, I think it well that, so far as possible, the fundamen­tal unconstitutionality of such action be publicly accepted, precisely because, as I have briefly pointed out above, the wide diffusion of this concept—that the courts have no role to fill—makes very plain to all the final responsibility of the Senate, on facts and on law. It would be most unfortunate if the notion got about that the Senates verdict were somehow tentative. The crucial senatorial vote should be taken, and should be known to be taken, with full knowledge that there is no appeal. No senator should be encouraged to think he can shift to any court responsibility for an unpalatable or unpopular decision.

The dissemination of the “judicial review” idea could be most unfortunate in another way; if a removed president tried it, and had his case (as would almost surely happen) dismissed for want of ju­risdiction, he might be able, though quite wrongly, to persuade a part of the people that he had been denied his rightful day in court.

I would conclude, then, with a paraphrase of the well-known saying of the country banker, when he was asked about cashing a check for a stranger. He said, “There are ten rules about cash­ing checks for strangers. The first rule is, ‘Never cash a check for a stranger.’ The other nine rules don’t matter.” There are ten rules about judicial review of the judgments of the Senate on impeach­ments. The first rule is that the courts have, in this, no part at all to play. The other nine rules don’t matter.

https://www.yalelawjournal.org/forum/impeachment-a-handbook

Impeachment: A Handbook

26 Nov 2018
Philip Bobbitt

Charles Black’s Impeachment: A Handbook, first published in 1974 at the height of the Watergate crisis, has become the authoritative guide on the subject of presidential impeachment. In September, the Yale University Press published a new edition of the classic handbook, incorporating a new preface and new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in the Essay that follows.

Because Professor Black’s original text had no accompanying notes, the publisher decided to continue this format in the new print edition. In this re-publication, the Journal worked with Bobbitt to present his chapters with extensive notes in order to provide a resource for students, scholars, lawyers, journalists, and public officials.

[Bubba_Leroy]

You don't think that anyone actually reads those 10 page block quotes that you keep cutting and pasting out of the same cases do you?

[Bubba_Leroy]

[Bubba_Leroy]

[Bubba_Leroy]