Michael Gaynor
The United States Senate has a constitutional duty to dismiss the impeachment articles against President Trump
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By Michael Gaynor
January 1, 2020

A Senate trial would be the wrong response, even if President Trump prefers
it, because it would indicate that the articles of impeachment are trial worthy,
which they are not

Last month, the House of Representatives voted to impeach President Donald Trump on two articles of impeachment, neither of which is a crime.

Two articles of impeachment against President Trump were narrowly approved by a Democrat-controlled House of Representatives.

Since neither article actually alleges an impeachable crime, treating the alleged impeachment as legitimate out of respect for the House of Representatives or under some notion of comity would be a travesty of justice and a terrible precedent.

Accordingly, the articles of impeachment against President Trump should be summarily dismissed by the United States Senate for failure to state a cause of action.

A Senate trial would be the wrong response, even if President Trump prefers it, because it would indicate that the articles of impeachment are trial worthy, which they are not.

The only grounds for impeachment set forth in the Constitution are treason, bribery, and other high crimes and misdemeanors.

Speaker of the House Nancy Pelosi is shocking the world by failing to deliver the articles of impeachment to the United States Senate and obviously trying to leverage the ministerial act of delivery in order to influence Senate rules for the trial of a presidential impeachment, even though the Constitution explicitly gives the House of Representatives "sole power" to impeach and the Senate "sole Power to try all Impeachments."

Accordingly, it is very much in order to look for guidance to the impeachment and acquittal of Samuel Chase, the only United States Supreme Court Justice to be impeached.

These days, President Thomas Jefferson is much better known for the Declaration of Independence, the Louisiana Purchase, and his relationship with one of his slaves (Sally Hemmings), but his failed attempt to oust Justice Chase from his judicial office is especially noteworthy now.

Please read the following summary (from Wikipedia):
    "President Thomas Jefferson, alarmed at the seizure of power by the judiciary through the claim of exclusive judicial review, led his party's efforts to remove the Federalists from the bench. His allies in Congress had, shortly after his inauguration, repealed the Judiciary Act of 1801, abolishing the lower courts created by the legislation and terminating their Federalist judges despite lifetime appointments; Chase, two years after the repeal in May 1803, had denounced it in his charge to a Baltimore grand jury, saying that it would 'take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.' Earlier in April 1800, Chase acting as a district judge, had made strong attacks upon Thomas Cooper, who had been indicted under the Alien and Sedition Acts; Chase had taken the air of a prosecutor rather than a judge.]Also in 1800, when a grand jury in New Castle, Delaware declined to indict a local printer, Chase refused to discharge them, saying he was aware of one specific printer that he wished them to indict for seditious behavior. Jefferson saw the attack as indubitable bad behavior and an opportunity to reduce the Federalist influence on the judiciary by impeaching Chase, launching the process from the White House when he wrote to Congressman Joseph Hopper Nicholson of Maryland, asking: 'Ought the seditious and official attack [by Chase] on the principles of our Constitution . . .to go unpunished?'"

    "Virginia Congressman John Randolph of Roanoke took up the challenge and took charge of the impeachment. The House of Representatives served Chase with eight articles of impeachment in late 1803, one of which involved Chase's handling of the trial of John Fries. Two more focused on his conduct in the political libel trial of James Callender. One article covered Chase's conduct with the New Castle grand jury, charging that he 'did descend from the dignity of a judge and stoop to the level of an informer by refusing to discharge the grand jury, although entreated by several of the said jury so to do.' Three articles focused on procedural errors made during Chase's adjudication of various matters, and an eighth was directed at his 'intemperate and inflammatory ... peculiarly indecent and unbecoming ... highly unwarrantable ... highly indecent' remarks while 'charging' or authorizing a Baltimore grand jury. On March 12, 1804, the House voted 73 to 32 to impeach Chase. The United States Senate – controlled by the Jeffersonian Democratic-Republicans – began the impeachment trial of Chase on February 9, 1805, with Vice President Aaron Burr presiding and Randolph leading the prosecution.

    "All the counts involved Chase's work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The heart of the allegations was that political bias had led Chase to treat defendants and their counsel in a blatantly unfair manner. Chase's defense lawyers called the prosecution a political effort by his Republican enemies. In answer to the articles of impeachment, Chase argued that all of his actions had been motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency.

    "The Senate voted to acquit Chase of all charges on March 1, 1805. There were 34 Senators present (25 Republicans and 9 Federalists), and 23 votes were needed to reach the required two-thirds majority for conviction/removal from office. Of the eight votes cast, the closest vote was 18 for conviction/removal from office and 16 for acquittal in regards to the Baltimore grand jury charge. He is the only U.S. Supreme Court justice to have been impeached. Judge Alexander Pope Humphrey recorded in the Virginia Law Register an account of the impeachment trial and acquittal of Chase.

    "The impeachment raised constitutional questions over the nature of the judiciary and was the end of a series of efforts to define the appropriate extent of judicial independence under the Constitution. It set the limits of the impeachment power, fixed the concept that the judiciary was prohibited from engaging in partisan politics, defined the role of the judge in a criminal jury trial, and clarified judicial independence. The construction was largely attitudinal, as it modified political norms without codifying new legal doctrines.

    "The acquittal of Chase – by lopsided margins on several counts – set an unofficial precedent that many historians say helped ensure the independence of the judiciary. As Chief Justice William Rehnquist noted in his book Grand Inquests, some senators declined to convict Chase despite their partisan hostility to him, apparently because they doubted that the mere quality of his judging was grounds for removal. All impeachments of federal judges since Chase have been based on allegations of legal or ethical misconduct, not on judicial performance. For their part, federal judges since that time have generally been much more cautious than Chase in trying to avoid the appearance of political partisanship."
Before the impeachment of President Trump, Speaker Pelosi tried "to avoid the appearance of political partisanship," but ultimately she failed miserably. Only Democrats voted for impeachment on either article, and three Democrats refused to vote for impeachment at all, with two voting no and the third voting present.

It is certainly fair to ask whether Speaker Pelosi is trying to use impeachment as a political weapon in the 2020 elections, which would be an abuse of power by her. Let's turn from the author of the Declaration of Independence to "the father of the Constitution," James Madison. At the Constitutional Convention, Madison wanted "maladministration" to be a ground for impeachment – a subjective standard that would render a president or a judge liable to partisan impeachment.

But maladministration was rejected as a ground for impeachment.

At the impeachment trial of Justice Chase, Jefferson supporter Senator Giles of Virginia opined as follows: "Impeachment is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might be better filed by another. *** The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate; A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. *** [but] was nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."

Justice Chase's counsel argued that "high crimes and misdemeanors" means offenses indictable at common law.

The acquittal of President Andrew Johnson buttressed that argument, despite the efforts of Representative Jonathan Bingham, the leader of the House impeachment managers.

According to Representative Bingham, "[a]n impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."

Former Justice Benjamin R. Curtis, who acted as chief counsel during the impeachment trial, rejected this broad interpretation, stating: "My first position is, that when the Constitution speaks of 'treason, bribery, and other high crimes and misdemeanors, it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment."

To those who note that some federal judges were impeached and convicted even though they had not been determined to have committed indictable offenses, those cases are sharply distinguishable in three important respects: (1) federal judges are appointed, not elected, (2) federal judges serve during "good behavior" and (3) the Constitution imposes the "good behavior" standard on federal judges, not on members of the Executive and Legislative branches of government.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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