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To: 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.

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.

227 posted on 01/26/2021 12:40:30 PM PST by woodpusher
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To: woodpusher
"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.

229 posted on 01/26/2021 1:23:48 PM PST by yoe (President Trump works for We The People - not China as Biden has and will.)
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To: woodpusher
"[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.

231 posted on 01/26/2021 2:45:06 PM PST by Bubba_Leroy (Dementia Joe is Not My President!)
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