How sad, disheartening, disgraceful. On the global stage, in a time when due process, civil liberties, free speech, and rule of law are challenged around the world, from China, Russia, and Iran – which just executed a second Olympic wrestler for speech – we are about to have a Chinese-style “show trial.” See, e.g., https://www.bbc.co.uk/news/world-asia-china-36983521; https://www.project-syndicate.org/commentary/china-s-show-trial-of-the-century-by-ma-jian; https://www.dailymail.co.uk/news/article-9134367/Iran-set-execute-second-wrestler-year-hanging-champion-competitor.
Incredibly, the US Senate is about to “try” a former president (almost universally considered unconstitutional), impeached by a partisan House in three days without due process, witnesses, defense, or chance to confront accusers, on a standard that compels dismissal in court (no legal incitement, under Brandenburg), and now without a Chief Justice (who considers the mockery beneath him), and without time to mount a legal defense – to showcase what?
Venality, personal antipathy, political one-ups-woman-ship? The whole thing is devolving into “theater of the absurd,” a childish rant taken to unconstitutional extremes, laid at the feet of an appalled America public by Speaker Nancy Pelosi and a churlish, vain glorious, conservative-hating Democrat House, enabled by a weak, egotistical, out-of-touch Senate Majority Leader, Chuck Schumer.
Legally, if not politically, this is an unforced error, staged train wreck, showing all the world how partisan, unprofessional, intellectually dishonest, and constitutionally unfaithful America’s leading Democrats can be. Criminals at the Capitol should be arrested, but the former president is guilty of no crime. Where is Joe Biden to say, “children grow up”? Where are level Democrat heads, working to enlighten their caucus – to say, this is useless, dead end, sure to backfire, given how many Americans not supported Trump, and how many more want to the past left behind?
They are nowhere to be found. Accordingly, we will witness the first “show trial” of a US president –former president – in American history, first grand senatorial mockery of justice since McCarthyism.
The notion that due process – an important guarantee for all Americans – is being ignored, will make China’s Politburo chortle to no end, happy to keep crushing rights, since America’s Congress is all talk. If America’s Democrats do not respect rights, why should China? Or Putin, who just arrested 5,000 protestors, who dared protest corruption – as Americans used to without fear.
The irony is so profound, average Americans are startled, embarrassed, as much as disinterested, disaffected, and disgusted. We expect Senators to be grown-ups, not schoolyard bullies or bumbling fools. Yet here we are, watching something that amounts to an historic spectacle.
What is the spectacle? We are watching the Constitution savaged, starting with the First Amendment. In relevant part, it restricts Congress from “abridging freedom of speech… or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”
That is what the president encouraged people to do, and what 99 percent who heard did. An indisputably liberal Supreme Court in 1969 – led by Earl Warren, joined by Thurgood Marshall and William Brennan, avowed political liberals – held in Brandenburg v. Ohio under similar circumstances, that actionable “incitement” required specific intent to “lawless” behavior and “likelihood” the specific intent would create lawlessness. See, e.g., https://www.law.cornell.edu/wex/brandenburg_test.
By reference to dozens of decided federal cases, nothing in the president’s remarks met either prong. That is one reason the Chief Justice likely demurred. He does not want to be dragged into an anti-constitutional “show trial.”
A second constitutional bar to this mess is the Framers’ intent. Impeachment was never intended to try a president after office, since the remedy is removal. Any American, no law degree required, can read this. So can Senators, who choose to press on.
Third, the Constitution is clear about federal actions not violating the 5th Amendment guarantee of due process – the one put there by Framers, not added later for States by the 14th Amendment.
The text is clear, that actions portending to justice – presumably by courts, House, or Senate, must abide due process. If they do not, they violate the 5th Amendment. Self-evidently, the House threw due process out the window – faster than in the first trial. The Senate has done the same. Violating due process in this context is an abomination, a disgrace.
Then comes the Sixth Amendment violation, where Congress ignores guarantees – implicitly as much for impeachment as civil or criminal trials – allowing an accused to mount a defense, confront accusers, and enjoy fairness in preparation for trial. All gone.
Gone too is the guarantee that an “accused shall enjoy… trial … by an impartial jury.” Put enjoyment aside, as Trump might just enjoy all this. Focus on that “impartial jury.” Has Schumer or any Democrat sounded impartial? Also missing is the guarantee that witnesses against him be confronted, “compulsory process for obtaining witnesses in his favor” (that is, subpoena power) given, and time allowed for “assistance of counsel.” Poof, all gone.
One could argue that the hoped-for punishment – although conviction is not likely – is also “cruel and unusual punishment,” a violation of the Eighth Amendment, stripping an innocent man of an office he no longer holds and forbidding him from running again. That would be a stretch, but this whole charade is a stretch – to breaking the Constitution.
Last, consider the mockery of “show trial” – not unlike China – becoming normal. If a president can be impeached after office, what president is free of that penalty now? None. If a president is impeachable for exercising constitutionally protected speech, what American is not in fear?
If one part of the Constitution can be disrespected, distorted, and misused for naked political gain, what part is safe from such politically motivated misuse? What American is safe to speak, worship, assemble, petition, defend herself, avoid unfair persecution, detention, and an unfair show trial? The answer, by reference to Congressional Democrats – no one is safe.
So, I leave you with this. Our Constitution and Bill of Rights depend on honor, honesty, educated and truthful interpretation – not knife-in-back gamesmanship, self-inflating demagoguery, or dishonest action by Congressional partisans.
If smart, Democrats would pull the plug on this, dismiss the effort to embarrass a former President, and get on with business. That is what grown-ups would do. But we live in strange times. We are about to witness an anti-constitutional “show trial” of a former president. The Framers would not be happy. Democrats do not seem to see the folly. On they plow into the mud-rich embankment of constitutional savagery. How sad, disheartening, disgraceful.