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Pelosi's Proposal to Withhold Senate Trial Is Unconstitutional

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By Alan Dershowitz:

 

Now that the House has impeached President Trump, the question is what happens next. Speaker Pelosi has suggested that she may withhold the articles of impeachment from the senate as part of a negotiating tactic. This ploy drives from an idea put forward by my friend and colleague Laurence Tribe, who has proposed that the Senate not conduct a trial — at least not now.

He would withhold the trial until the Senate agreed to change its rules, or presumably until a new election put many more Democrats in the Senate. Under his proposal, there might never be a Senate trial, but the impeachment would stand as a final and permanent condemnation of President Trump.

It is difficult to imagine anything more unconstitutional, more violative of the intention of the Framers, more of a denial of basic due process and civil liberties, more unfair to the president and more likely to increase the current divisiveness among the American people. Put bluntly, it is hard to imagine a worse idea put forward by good people

Denying President Trump and the American people a trial in the Senate would constitute a variation on the title of my new book, "Guilt by Accusation."

President Trump would stand accused of two articles of impeachment without having an opportunity to be acquitted by the institution selected by the Framers to try all cases of impeachment. It would be as if a prosecutor deliberately decided to indict a criminal defendant but not to put him on trial.

This would deny him the right to confront his accusers and to disprove the charges against him. Tribe himself uses a variant of this analogy.

He hypothesizes a situation in which a prosecutor indicts a criminal defendant and then discovers that the proposed trial would be been tainted by jury tampering. Would the prosecutor then not have the right to withhold the trial until such time as an untainted jury could be seated?

As a law professor who has employed hypotheticals for more than half a century, this one fails on its face. A true analogy would be not to a prosecutor who discovered after indictment that the jury was tainted, but to a prosecutor who believed before the indictment that there was no possibility of a fair jury trial.

A prosecutor who indicted under such circumstances — not intending to bring the defendant to trial — would be violating his duty and denying the defendant his fundamental rights.

An even better analogy would be a prosecutor who knew that both the grand jury and the petit jury were tainted by preexisting prejudices: the grand jury was biased against the defendant and the petit jury in his favor.

Nonetheless, he went forward with an indictment by the grand jury that was biased against the defendant and withheld a trial by a petit jury that was biased in the defendant’s favor.

Tribe’s analogy fails for another reason as well.

Tribe is the first to admit in his excellent book and prior writings that the process of impeaching and removing a president contains political elements as well as judicial ones.

So he should not be surprised that the Democratic dominated House pre-judged Trump’s guilt, while the Republican house may have pre-judged his innocence. That is the nature of the system and should be addressed as a whole not by accepting the partisan nature of an impeachment, while rejecting the partisan nature of a trial.

This is yet another example of partisans failing the "shoe on the other foot" test. I cannot imagine Pelosi or Tribe proposing this jerry-rigged unconstitutional gambit had Hillary Clinton been elected president, and had a republican House impeached her.

They would then be demanding that the Democratic controlled Senate conduct a trial and acquit their improperly impeached candidate.

Alexander Hamilton worried that the greatest danger of misusing the impeachment process would be to make it turn on the comparative votes each party could muster in the House and the Senate. This danger has come to fruition with the current impeachment — the first one in American history — that is based purely on partisan votes.

The proper response is not to distort, ignore and violate the explicit terms of the Constitution that view impeachment by the House as a first steptoward a trial by the Senate. An impeached president has a right to be tried and acquitted by the Senate.

Denying him and the American people that fundamental right might serve the temporary interests of the Democratic party, and academics who support it, but would do violence to the rule of Constitutional law that is supposed to serve all Americans, regardless of party or ideology.

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The Sixth Amendment to the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial.

How does this BS conform to that? 

 

 

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3 mins ago, J said:

The Sixth Amendment to the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial.

How does this BS conform to that? 

 

 

That it doesn't is of no concern to us.

Get back in line citizen.

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Quote

 

DOJ tells court McGahn subpoena is moot after impeachment vote

BY HARPER NEIDIG - 12/19/19 02:59 PM EST
The Trump administration told a court on Thursday that the House subpoena ordering former White House counsel Don McGahn to testify in the impeachment inquiry "appears to be moot" now that the president has been impeached.
 

The Department of Justice submitted a brief with the D.C. Circuit Court of Appeals arguing that the House Judiciary Committee overstepped its authority by seeking a court order to compel McGahn to testify and that it plans to take the fight to the Supreme Court if it loses on appeal.

"Although the judgment instead should be reversed and the case dismissed, if the Court were to disagree, it should at least leave the stay in place for a reasonable period to allow the Solicitor General to seek appropriate relief from the Supreme Court, especially given the serious question whether McGahn’s testimony is even relevant to the now-passed articles of impeachment," the DOJ wrote in a footnote to the brief.

 

Two panels of D.C. Circuit judges will hear arguments early next month over the House Judiciary Committee's subpoena battles with the Justice Department in the McGahn case as well as in a dispute over redacted material from former special counsel Robert Mueller's report.

After the House passed two articles of impeachment against President Trump Wednesday night, the two D.C. Circuit panels immediately ordered the parties in both cases to brief them next week on whether the subpoenas are moot, now that the impeachment process in the House is over.

The Justice Department also added that the House committee lacks legal standing to bring the case and that the courts should not be used to resolve such disputes between the executive and legislative branches.

 

"A court should refrain from embroiling itself in an interbranch dispute without any imprimatur from Congress as a whole, particularly where the Committee’s primary asserted need for subpoenaing McGahn—his potential testimony related to an obstruction-of-justice impeachment charge ... appears to be moot," the department wrote.

A spokeswoman for the House Judiciary Committee did not immediately return a request for comment on whether it still plans to pursue the subpoenas.

 

 

This move, counter move is getting comical. 

Edited by J

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3 mins ago, J said:

The Sixth Amendment to the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial.

How does this BS conform to that? 

 

 

How long did it take you J to get your guns back with your "speedy trial? President Trump won't be President in 5 years, what then?

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"Alexander Hamilton worried that the greatest danger of misusing the

impeachment process would be to make it turn on the comparative votes each party could muster in the House and the Senate. This danger has come to fruition with the current impeachment — the first one in American history — that is based purely on partisan votes."

I have no love for the Reps, the Dems have fallen into the abyss.

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41 mins ago, Bass Ackwards said:

How long did it take you J to get your guns back with your "speedy trial? President Trump won't be President in 5 years, what then?

I got them back within a couple days of filing suit.

Took me many years to get to the point I filed suit however..... 

And then a few more years to go through the court to prove damages and get paid. 

 

But to answer your question, I filed suit and the judge ruled in my favor under Summary Judgment fairly quickly. 

Edited by J

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49 mins ago, J said:

The Sixth Amendment to the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial.

How does this BS conform to that? 

 

 

NOT a criminal prosecution, ergo, not beholden to the 6th.

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She'll send them over soon. She's just giving time for the Dem talking points about "the Senate's trial is unfair" to be dispersed to the NPCs by the media.

This way she sets up her excuse when her articles are laughed out of the Senate. That's all this is.

 

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51 mins ago, J said:

 

 

This move, counter move is getting comical. 

Psst the McGhahn subpoena has nothing to do with these impeachment proceedings it was filed months before the Impeachment inquiry.

If the DOJ argues that it’s invalid because a Trump has been impeached that’s like saying if you charge someone for one crime you can’t investigate him for any others.

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12 mins ago, KnewBee said:

NOT a criminal prosecution, ergo, not beholden to the 6th.

 

If you truly belive that then you have no shame and are a hypocrite to the nth degree.....

How come Pelosi and company stood up on the stage and said they are obligated to "find the truth"....

You are with without a doubt an absolute hypocrite and a shameless person.....

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