Michael Gaynor
Senators have a constitutional duty to dismiss impeachment articles against President Trump, because no impeachable offense is alleged
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By Michael Gaynor
January 15, 2020

Nearly all Congressional Democrats appear to be Humpty Dumptys these days.

Message to all persons eager for a Senate trial and ready to disregard the United States Constitution:

The United States Constitution Is the supreme law of the land.

In addition to Presidents, members of Congress swear an oath to uphold the United States Constitution, not to surreptitiously amend it at will for a political purpose, a personal purpose or any other purpose.

That is what nearly all Congressional Democrats are hell-bent on doing.

There are no exceptions for Democrat Senators running for President (or for Republican Senators who unsuccessfully pursued the Presidency, whether or not they are retiring at the end of the current Congress or running for reelection).

There is nothing for the Senate to try because no impeachable offense is alleged.

Neither of the two articles of impeachment adopted by a majority of the House of Representatives sets forth an impeachable offense.

Therefore, there is nothing for the Senate to try and dismissal either upon motion or sua sponte is in order.

Former House minority leader and President Gerald Ford argued on the floor of the House that "high crimes and misdemeanors" should be defined as "whatever a majority of the House of Representatives considers them to be at a moment in history."

That is legal nonsense.

Lewis Carroll famously wrote in Through the Looking Glass:

"'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean – neither more nor less.'

"'The question is,' said Alice, 'whether you can make words mean so many different things.'

"'The question is,' said Humpty Dumpty, 'which is to be master – that's all.'"

Nearly all Congressional Democrats appear to be Humpty Dumpty's these days.

The Constitution is not amendable that way by a unanimous vote of the House, much less a simple majority.

What the people who drafted and ratified the Constitution meant by "high crimes and misdemeanors" does not change with the whims of members of Congress.

There are more crimes and misdemeanors these days, but under the rules of legal construction the only impeachable crimes are treason, bribery and high crimes and misdemeanors like treason and bribery, the only high crimes specified in the Constitution.

"Maladministration" is not an impeachable offense and was specifically rejected at the Constitution Convention.

Neither is "abuse of power" or "obstruction of Congress."

Bribery is an impeachable offense, of course, but it was not alleged against President Trump, which is telling.

When a complaint is filed in court, a motion to dismiss is in order if the complaint fails to allege a cause of action. Please read the two impeachment articles set forth below and let me know if you discern an impeachable high crime or misdemeanor, or political shenanigans out of control.

Article 1. Abuse of Power

The Constitution provides that the House of Representatives "shall have the sole Power of Impeachment and that the President shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." In his conduct of the office of President of the United States – and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed – Donald J. Trump has abused the powers of the Presidency, in that:

Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations. President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit. In so doing, President Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation.

President Trump engaged in this scheme or course of conduct through the following means:

(1) President Trump – acting both directly and through his agents Within and Outside the United States Government – corruptly solicited the Government of Ukraine to publicly announce investigations into –

(A) a political opponent, former Vice President Joseph R. Biden, Jr.; and

(2) With the same corrupt motives, President Trump – acting both directly and through his agents within and outside the United States Government – conditioned two official acts on the public announcements that he had requested –

(A) the release of $391 million of United 5 States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended; and

(B) a head of state meeting at the White House, which the President of Ukraine sought to demonstrate continued United States support for the Government of Ukraine in the face of Russian aggression.

These actions were consistent with President Trump's previous invitations of foreign interference in United States elections.

In all this, President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.

Wherefore President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self- governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any Office of honor, trust, or profit under the United States.

Article II: Obstruction of Congress

The Constitution provides that the House of Representatives "shall have the sole Power of Impeachment" and that the President "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." In his conduct of the office of President of the United States – and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed –

Donald J. Trump has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its sole Power of Impeachment. President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution, in that:

The House of Representatives has engaged in an impeachment inquiry focused on President Trump's corrupt solicitation of the Government of Ukraine to interfere in the 2020 United States Presidential election. As part of this impeachment inquiry, the Committees undertaking the investigation served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials.

In response, without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas. President Trump thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself functions and judgments necessary to the exercise of the "sole Power of Impeachment" vested by the Constitution in the House of Representatives.

President Trump abused the powers of his high office through the following means:

(1) Directing the White House to defy a lawful subpoena by withholding the production of documents sought therein by the Committees.

(2) Directing other Executive Branch agencies and offices to defy lawful subpoenas and withhold the production of documents and records from the Committees – in response to which the Department of State, Office of Management and Budget, Department of Energy, and Department of Defense refused to produce a single document or record.

(3) Directing current and former Executive Branch officials not to cooperate with the Committees – in response to which nine Administration officials defied subpoenas for testimony, namely John Michael "Mick" Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl.

These actions were consistent with President Trump's previous efforts to undermine United States Government investigations into foreign interference in United States elections.

Through these actions, President Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its "sole Power of Impeachment." In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate "high Crimes and Misdemeanors." This abuse of office served to cover up the President's own repeated misconduct and to seize and control the power of impeachment and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.

In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.

© 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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