Donald J. Trump’s written defense reveals his accusers in the House, and any Senators who vote to convict him of the Article of Impeachment passed by the House, are in violation of at least seven distinct provisions of the U.S. Constitution. (See https://www.45office.com/assets/uploads/general/45th-presidents-answer-to-article-of-impeachment-final.pdf. All material quoted below is from Donald J. Trump’s written defense unless otherwise indicated.)
The content of the House of Representative’s single Article of Impeachment can be read at this site: https://assets.documentcloud.org/documents/7347691/Articles-of-impeachment-against-President-Trump.pdf
One: Violation of Due Process. Members of the House violated then-President Trump’s constitutional right to due process (e.g., the 5th and 6th Amendments) and “ignored its own procedures and precedents … The lack of due process included, but was not limited to, its failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence” or allow “the 45th President’s positions to be heard in the House Chamber … [thus] depriving the 45th President of due process of law…” This precedent of denying Donald J. Trump due process indicates the House members who voted to impeach him after only seven hours of proceedings do not believe a President is due the rights guaranteed to all citizens under the Bill of Rights. Their actions condemn these members of the House as violators of the Constitution and their oath of office.
Two: Violation of Republican Form of Government (Representation). I take GREAT exception to the Article of Impeachment statement that the “Article of impeachment [is] exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump…” (emphasis added). When, during their seven hours of proceedings, did members of the House ask me if I approved of their resolution or vote to impeach? Never! The House impeached the President of its own volition, not as the People’s representatives. They demonstrated the dangers of a “democracy” where majority rule of an assembled body abolishes representative governance of, by, and for the People. Those who hastily voted to impeach the President without due process also violated the Constitution’s guarantee of a republican form of government (Article IV, Section 4) when they denied the citizens they are supposed to represent ANY time to express our opinions and knowledge regarding the alleged high crimes and misdemeanors.
Three: Violation of Senate Jurisdiction. Article I, Section 3 limits “who” the Senate may try and potentially convict of articles of impeachment — namely office holders who can be removed from office. It gives the Senate no authority to try citizens who are not currently in office. Trump, in his written defense, repeatedly reminds the Senate that he is no longer in the office of President of the United States, and it is thus improper for them to hold a trial for the Article of Impeachment. The House passed the Article of Impeachment while Trump was in office, stating it was an “Article of Impeachment…against Donald John Trump, President of the United States of America.” But the Senate did not receive that Article until after President Trump’s term of office was completed on January 20, 2021. The document received by the Senate is thus no longer legally relevant or ACCURATE because the defendant named is not in the office named. Mr. Trump therefore justifiably asks the Senate to dismiss the Article of Impeachment “because the Senate lacks jurisdiction to remove from office a man who does not hold office.”
Four: Violation of Trial Procedures – Presiding Official. Article 1, Section 3 specifies that the Chief Justice SHALL preside over trials of impeachment for the President of the United States. IF Donald Trump could still be tried as President after he is out office (which he cannot), there is no constitutional support for Democrat Senator Leahy to preside over the trial. It is furthermore a gross violation of judicial integrity for a partisan Senator with demonstrated bias against the accused (he voted to convict Trump of the articles of impeachment in 2020) to preside. Is Senator Leahy also allowed to vote to convict? If so, this trial is without precedent for it places a voting member of an elite jury (the Senate is NOT an impartial jury of peers) in charge of the trial proceedings! If Senator Leahy recuses from voting to acquit or convict, the Democrat Senators are not in the majority (there are 47, not 48) and their fabricated allegation that “tradition” supports Leahy as the next in line to preside if the Chief Justice refuses is false. (The Democrats also conveniently include two Independents and Kamala Harris in their count to defend their assertion of a Senate “majority” and the majority senior Senator’s right to preside.) The members of the Senate who contrived this arrangement and/or support its implementation are in violation of both the Constitution and judicial ethics.
Five: Violation of Trial Procedures – Vaguely Written Article of Impeachment. “The Article is constitutionally flawed in that it charges multiple instances of allegedly impeachable conduct in a single article. By charging multiple alleged wrongs in one article, the House of Representatives has made it impossible to guarantee compliance with the Constitutional mandate in Article 1, Sec. 3, Cl. 6 that permits a conviction only by at least two-thirds of the members. The House charge fails by interweaving differing allegations rather than breaking them out into counts of alleged individual instances of misconduct. Rule XXIII of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials provides, in pertinent part, that an article of impeachment shall not be divisible thereon.” This means that parts of the Article cannot be removed and voted on separately. This makes it impossible for the “incitement of insurrection” and “seditious acts” wording to be stricken from the impeachment article already passed by the House and unconstitutional for the Senate to vote for conviction with that language present (see point seven below).
Six: Violation of Free Speech Protection. The Article of Impeachment alleges that President Trump “issued false statements” and “reiterated false claims” regarding the results of the 2020 General Election and this information was used to incite an insurrection and interfere with the Electoral College certification. The members of the House who voted to impeach denied the President due process inquiry as to whether the content of his speech was true or false or in any way connected to other citizens’ conduct at the Capitol. They essentially used the President’s First Amendment-protected political speech to justify their assertion of alleged high crimes and misdemeanors, claiming (without evidence) that Trump’s speech was connected to other people’s actions! Should we now expect that ANY federal official’s political speech that those House members disagree with will be punished by articles of impeachment and Senate trials presided over by biased, partisan Senators?
Seven: Senate Conviction Would Pass a Bill of Attainder. All of the Constitution violations listed above are of consequence, but this one is, in my opinion, the most serious.
Donald J. Trump’s written defense states, “Should the Senate act on the Article of Impeachment initiated in the House of Representatives, it will have passed a Bill of Attainder in violation of Article 1, Sec. 9. Cl. 3 of the United States Constitution.” Article I, Section 9, Clause 3 states, “No Bill of Attainder or ex post facto Law shall be passed.” Article I relates to the permissions and prohibitions of the legislative branch (Congress). According to West’s Encyclopedia of American Law, Edition 2, a bill of attainder is “A special legislative enactment that imposes a death sentence without a judicial trail upon a particular person or class of persons suspected of committing serious offenses, such as treason or a felony. A bill of attainder is prohibited by Article I, Section 9, Clause 3 of the Constitution because it deprives the person or persons singled out for punishment of the safeguards of a trial by jury.”
The House already passed an impeachment article without due process containing an accusation of “incitement of insurrection” against then-President Trump, who is now unlawfully being tried by the Senate as a private citizen (since he is no longer in office). If two-thirds or more of the Senate votes to convict Donald J. Trump of the article of impeachment, the Congress will have collectively passed a bill of attainder, in violation of the Constitution’s protection of civil liberties, including the right to a trial by an impartial jury of the defendant’s peers.
Article I, Section 3 limits the Senate’s penalty for conviction of impeachment to “removal from office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States…” Passing a bill of attainder (which imposes an obviously harsher penalty) is unconstitutional, and it is therefore outside the Senate’s constitutional authority to hold this trial or vote to convict Donald J. Trump of this article of impeachment.
All members of Congress take an oath to defend and protect the Constitutions. Hundreds of them violated that oath when they approved an article of impeachment that violated President Trump’s right to due process and his First Amendment right to free speech. House leadership violated Article I, Section 3 when they walked the article over to the Senate after the President had concluded his term of office, thus asking for a trial of a non-office holder. Senate leadership violated Article I, Section 3 and basic tenets of fair judicial proceedings when they accepted the article of impeachment and appointed a partisan, biased member of the jury (Senator Leahy) to preside, thus advancing the impeachment to a Senate trial. If the Senate votes to convict Mr. Trump, those voting to convict will have unlawfully passed a bill of attainder.
Some Republican members of the House were oath keepers and rightly opposed the Article of Impeachment. The number of Senators who will be oath keepers remains to be seen, although Senator Rand Paul’s point of order vote relating to the fact that Trump no longer holds a federal office and can therefore not be removed from office indicates there may be 45 of them.
Clearly a majority of Congress has taken unconstitutional actions during the impeachment proceedings, possibly even conspiring to impose the death penalty on a U.S. citizen who is no longer in federal office. Such conduct from those members of Congress who acted on their own without instruction from We the People is an alarming indication of where democracy’s majority-rule mentality, unrestrained by the safeguards of republican principles, can lead. It is possible that these oath-breakers are ignorant of these impeachment and trial proceedings violations of the Constitution (and the violations in the legislation they routinely propose) and just need a refresher course in the U.S. Constitution (plus strict citizen oversight). Or they may be willfully seeking to subvert the Constitution and our Republic and may be deserving of removal from office for repeated violation of their oath of office.