Michael Gaynor
Would articles of impeachment against President Trump be fit to be tried by the Senate?
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By Michael Gaynor
December 17, 2019

Even if President Trump chooses not to move to dismiss the articles of impeachment, whether for legal, political or personal reasons, Chief Justice John Roberts should act sua sponte as an impeachment trial is about to begin and ask the Senate to vote on whether there is a legal and factual basis to proceed to trial on either article.

It appears that two articles of impeachment against President Trump are about to be approved by the House of Representatives as part of the Democrats' 2020 election strategy.

If not, House Speaker Nancy Pelosi no longer can count votes and needs to retire.

Impeachment is the equivalent of indictment, and not all indictments are worthy of a trial, much less conviction.

The Easley Law firm posted the following helpful summary on its website (www.easleyfirm.com/library/6-grounds-to-get-the-charges-against-you-dismissed.cfm):

Common Grounds to File a Motion to Dismiss Your Criminal Case

Whether you have any grounds to request that the charges against you be dismissed would depend on the facts of your case, how the police handled your arrest, and the evidence against you. Reasons you might want to bring this type of motion include:
  • No probable cause. The police must have probable cause to believe you committed a crime, were driving under the influence of alcohol, or violated a traffic law in order to stop you or your vehicle. If the officer did not have a good reason to suspect you, you may be able to get the charges against you dismissed.

  • Illegal search. The police can only search your vehicle or your home if they have a valid search warrant or under special circumstances – such as if you agree to the search, you have already been arrested, or emergency situations exist. If the search is illegal, any evidence the police obtained could be suppressed. This could result in the police having no case against you.

  • Lack of evidence. The police must have sufficient evidence to establish you committed the crime you are being charged with. If the judge does not believe there was strong enough evidence, he could dismiss the case.

  • Lost evidence. If key evidence is lost that is necessary to prove you committed the crime, the charges against you could be dismissed by the judge or voluntarily by the prosecutor. Similarly, if the police cannot show the proper chain of title – that the evidence was handled properly from the time the police took it as evidence until the trial – the evidence could be suppressed. If the evidence is critical to proving your guilt, the prosecutor may not have a case.

  • Missing witnesses. If a witness is missing or refuses to testify (and his testimony is critical to the charges against you) the judge could grant a motion to dismiss the charges or the prosecutor may voluntarily dismiss the case.or refuses to testify (and his testimony is critical to the charges against you) the judge could grant a motion to dismiss the charges or the prosecutor may voluntarily dismiss the case.

  • Failing to state Miranda Rights. If the police failed to give you your Miranda rights, or failed to give them properly, your statements – including a confession – may not be used against you. Sometimes this can be the primary evidence the police have against you. However, there are exceptions when failing to give Miranda rights properly do not limit the use of your statements by the police.
The United States Senate needs to do its duty and determine whether any articles of impeachment are trial worthy.

When it comes to the two articles of impeachment about to be approved – abuse of power and obstruction of Congress – it appears to me that dismissal for at least no probable cause, lack of evidence and missing witnesses would be in order as to one or both articles.

If the Senate proceeds to trial without determining that dismissal is not appropriate, that would be a travesty of justice and a terrible precedent.

At the least, the obstruction of Congress article should be dismissed.

Section 4 of Article Two of the United States Constitution states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

A President of the United States does not obstruct Congress within the meaning of Section 4 by asserting executive privilege, which is a key part of the Constitution's system of checks and balances.

It is for Congress to go to the federal courts to determine finally that executive privilege is not applicable in particular circumstances.

.The House of Representatives appears to be choosing to impeach instead of to pursue its option to challenge the President's executive privilege claim in court.

That would make impeachment for alleged obstruction of Congress unconstitutional, even if obstruction of Congress ultimately is determined to fall under "other high Crimes and Misdemeanors" (which is an open question).

In proceeding to trial on alleged obstruction of Congress, the Senate would be deciding that the obstruction of Congress alleged would so fall if proven at trial and that would be a bad precedent.

Likewise as to alleged abuse of power, the Senate would be so deciding implicitly and setting a dangerous precedent by doing so.

President Trump should move to dismiss, for the sake of the Presidency, and demand that the Senate vote on whether there is a sufficient basis to proceed to trial on any article of impeachment.

Even if President Trump chooses not to move to dismiss the articles of impeachment, whether for legal, political or personal reasons, Chief Justice John Roberts should act sua sponte as an impeachment trial is about to begin and ask the Senate to vote on whether there is a legal and factual basis to proceed to trial on either article.

A two-thirds vote would be required for conviction on any article of impeachment.

A simple majority in the House of Representatives suffices for impeachment.

But it does not follow that the Senate will agree that there was probable cause for impeachment and that a House investigation that ends in impeachment is not fatally tainted.

Fifty-one votes surely would be enough for dismissal.

Perhaps thirty-four should be enough.

After all, thirty-four votes would suffice for acquittal and a trial would be a waste of time and money (including taxpayer money).

Should the show really continue to go on?

I doubt it.

The time of Congress should be better spent and the harassment of President Trump should end so that he can do more for the United States of America and the World, as every president should.

Let's have the Senate Judiciary Committee do the additional investigating that may be in order instead.

© 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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