Michael Gaynor
How much longer will the persecution of Donald Trump continue?
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By Michael Gaynor
February 7, 2021

Donald Trump and the people who gave us a Constitution and a country deserve much better. They deserve heartfelt thanks, not vilification.

Donald Trump's domestic political enemies targeted him while he became a presidential aspirant and will continue to do so as long as he lives and a while longer if they can.

The United States Constitution begins with a statement of purpose: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

The Declaration of Independence acknowledges the God-given rights to "life, liberty and the pursuit of happiness."

Donald Trump became the America First President and as a result the only President of the United States to have been impeached twice.

Since those impeachments were scurrilous political attacks by political opportunists, they are badges of honor for Donald Trump.

Obviously Donald Trump never aspired to be a tool of Vladimir Putin.

If former presidents and vice presidents actually were subject to impeachment, Barack Obama and Joe Biden should be trying to explain why they should not be impeached and convicted for the first Trump impeachment. Fortunately for them bills of attainder are unconstitutional and the Constitution cannot be retroactively amended.

The second Trump impeachment, for "incitement of insurrection," based on a couple of hundred criminals attacking the Capitol after then President Trump had urged a huge crowd to peacefully assemble and protest outside the Capitol, beggars belief.

The Founders and the Framers of the Constitution would be disgusted.

One of them, James Madison, is known as "the father of the Constitution."

In addition to his Notes on the Constitution, Madison wrote many of The Federalist Papers, including No. 39.

In No. 39, Madison wrote: "The President of the United States is impeachable at any time during his continuance in office."

President Trump was impeached a second time before Joe Biden was inaugurated as Trump's successor, but the article of impeachment was not delivered to the Senate until several days after Joe Biden's presidential inauguration and so former President Trump is no longer removable and therefore there is no predicate for disqualification, which is a post-removal option, not mandatory in removal cases.

With respect to impeachment, the Constitution states in Article I, Section 3 as follows:

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

"Article II, Section 2, Clause 1 of the Constitution states in pertinent part: "The President shall...have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Accordingly, if a former President were impeached and disqualified from holding any "Office of honor, Trust or Profit," that former President would be eligible for a presidential pardon if subsequently indicted, tried, judged and punished according to criminal law, but would remain ineligible for any "Office of honor, Trust or Profit."

In Walter Nixon v. United States, 506 U.S. 224 (1993), the United States Supreme Court unanimously declined to review the removal from office of a federal judge who complained that he did not receive a trial before the entire Senate because a Senate rule provided for a subcommittee to hear the evidence.

Even though the Court was unanimous in concluding not to review Judge Nixon's removal from office, there were concurring opinions suggesting that the case

of a presidential impeachment and subsequent removal from office may be reviewable.

Justice Byron White stated in footnote 3, page 247: "Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."

Justice David Souter wrote in his concurring opinion at 253: "If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate."

Since 45 Republican Senators went on record that a Senate trial of a former president was inappropriate, it is very unlikely that Donald Trump will be convicted in a Senate trial, but politics isn't beanbag and a Senate acquittal may not be the end of it.

In an opinion piece published last month in The Washington Post, Yale law professor Bruce Ackerman and Indiana University law professor Gerard Magliocca suggested that Congress could turn to a provision of the Fourteenth Amendment that is aimed at preventing people from holding federal office if they are deemed to have “engaged in insurrection or rebellion against” the Constitution. The professors assert that if a majority of both houses of Congress vote that Donald Trump engaged in an act of “insurrection or rebellion,” then he would be barred from running for the White House again and only a two-thirds vote of each chamber of Congress in the future could undo that result.

There's no doubt the Donald Trump's domestic political enemies are hell bent on destroying him and offering what the Romans called "bread and circus" to their radical supporters.

Wikipedia:

"'Bread and circuse' (or bread and games; from Latin: panem et circenses) is a metonymic phrase referring to superficial appeasement. It is attributed to Juvenal, a Roman poet active in the late first and early second century CE—and is used commonly in cultural, particularly political, contexts.

"In a political context, the phrase means to generate public approval, not by excellence in public service or public policy, but by diversion, distraction or by satisfying the most immediate or base requirements of a populace—by offering a palliative: for example food (bread) or entertainment (circuses).

"Juvenal, who originated the phrase, used it to decry the 'selfishness' of common people and their neglect of wider concerns. The phrase implies a population's erosion or ignorance of civic duty as a priority."

Donald Trump and the people who gave us a Constitution and a country deserve much better. They deserve heartfelt thanks, not vilification.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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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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