Two centuries and a decade and a half away from today, honorable jurists and counselors appealed to this High Court of Impeachment in the Senate of the United States to honor the Constitutional constriction on impeachment, even for a political official it may find personally affronting. As Founding Fathers, respected jurists, and legal scholars each argued near the very founding of our country: “nothing is impeachable that is not also indictable.” Neither of the charges against President Donald Trump is indictable. As such, neither is impeachable. No crime, no conviction. Acquittal as a matter of law should be the Senate answer to this House hoax.
Critically, the Constitution only authorizes impeachment of the President for treason, bribery, or comparable “other high crimes and misdemeanors.” The Constitutional convention expressly rejected the use of impeachment for “maladministration.” As ably articulated and argued by jurists, scholars and counselors at law since the very founding of the country, a President cannot be impeached for what he cannot be indicted. No crime, no conviction. This is precisely the case in the impeachment of President Trump: no crime alleged because he committed no crime.
Where “there is no high crime or misdemeanor particularly alleged in the said articles of impeachment,” then there is no Constitutionally cognizable impeachment to answer. Indeed, “the insufficiency of said articles, and each of them” constitute “defects therein” defeating the need to even “make answer” to them. Who made this audacious claim? Justice Samuel Chase in 1805. Whom was he defending? Himself.
Justice Chase argued “impeachment might be invoked only for indictable offenses.” Justice Chase, and his able counsel, argued for acquittal as a matter of law “because the misdemeanors charged against Chase are not of a nature for which he might be indicted in a court of law.” As the journal of the proceeding itself admits, “counsel for Mr. Justice Chase argued elaborately that the power of impeachment applied only to indictable offenses.” Counsel for Justice Chase included Judge Joseph Hopkinson, himself the astute and learned son of the famous signer of the Declaration of Independence, Francis Hopkinson. It was the Constitutional rejoinder to the first brazenly partisan abuse of impeachment power, though it was not the last nor the worst. That disgraceful dishonor must be reserved for the wrongful impeachment of President Trump.
The idea, now denounced as novel and unprecedented by the leftist legal scholars and media narrators of our day, was recognized within years of our founding as “the first proper object of our inquiries in this case” of any impeachment “is to ascertain with proper precision what acts or offenses of a public officer are the objects of impeachment.” Indeed, it was our Founding Fathers, jurists and legal scholars who considered it a “wild idea” that impeachment could occur where the impeached “has violated no law of the country.” Were it otherwise, the House could merely “create the offense, and make any act criminal and impeachable at their will and pleasure,” offending the ex post facto and bill of attainder limits on Congressional power and the definitional controls the Constitution imposed on the House impeachment power.
Put most succinctly: “what is an offense is a question to be decided by the Constitution and the law, not by the opinion of a single branch of the legislature.” Just as a grand jury has no “general power to make anything indictable which they might disapprove,” so it is that the House has no general power to make anything impeachable which they might disapprove. If impeachment is not limited to violating “some known law of society,” then it subjects public officials to “the mere caprice or opinion of any” small subset of politicians. Without a governable law, “what is to be judged” and “what is he to be justified or condemned if not by some known law of the country?”
Due process compels no less than governable standards set by law. How can the House be allowed a power denied all government “to create crimes and inflict the most serious penalties on actions never before suspected to be criminal” merely through “exercise of their power of impeachment”? That is the “code of the Roman tyrant” not the Constitution of the free United States of America. Impeaching for non-indictable offenses not only upset and offended the very text of the Constitution, but it sought its sustenance in “the vice, venality and corruption of the Old World.” As Judge Hopkinson ably argued: “Let not the sword tremble over his unconscious head, or the ground be spared with quicksand and destruction which appear fair and harmless to the eye of the traveler.” Judge Hopkinson warned against the “strange and persecuting times among us.” A President is not above the law, but he is not below the law either.
Another fellow member of the Constitutional Convention also joined the defense of Justice Chase and concurred in their mutual commentary of the constraints on impeachable offenses: Luther Martin, rightly identified as one of the “Founding Fathers” himself. Impeachment “must be for an indictable offense.” Martin equally argued that while only an indictable crime is an impeachable offense, only the high crimes that misuse their office is an impeachable offense. Martin, Chase and Hopkinson all concurred that it would be shocking if any official could be “impeached and deprived of his office when has done nothing which the laws of his country prohibited.” Yet that is precisely what has occurred to President Trump.
An early member of a House impeachment effort also came to the defense of Justice Chase on the same grounds: Robert Harper. The specific textual limitations on impeachable offense could have no meaning except to “prove that no person can be impeached except for an offense.” Indeed, “impeachment is a criminal prosecution and cannot be maintained without the proof of some offense against the law,” a principle which “pervades all the other provisions of the Constitution on the subject of impeachment.” References to the pardon power, to conviction, to subsequent post-impeachment criminal prosecutorial power – it all reveals the Constitution’s intent to limit impeachment to a peculiar form of criminal conduct. Each state constitution mirrored this principle as “impeachment has been considered by all of them as a criminal prosecution for the punishment of defined offenses against the laws.”
A near half-century later former Supreme Court Justice Benjamin Curtis successfully argued the same on behalf of the first President ever impeached, Andrew Johnson: “when the Constitution speaks of treason, bribery and other high crimes and misdemeanors it refers to, and includes only, high criminal offenses against the United States, made so by some law of the United States existing when the acts complained of were done; and I say this is plainly to be inferred from each and every provision of the constitution on the subject of impeachment.” The crime must be of the kind “which strike at the existence of that Government.” Crimes like treason, that defeat the entire purpose of the Government in its first instance. Crimes like bribery, which kill the democracy that controls the Government. “Noscitur a sociis. High crimes and misdemeanors; so high that they belong in his company with treason and bribery.” In addition, it beggars logic and justice alike that where “there must be some law; otherwise there is no crime.” Why else would impeachment be referenced in the power to pardon, if not based on criminally offensive conduct? Were it otherwise, we could have impeachment “by no crime” and a trial “by no court,” subjecting the people’s elected President to the capricious whim of Congress, a Parliamentary form of power the Constitution directly discarded.
A half-century before Justice Curtis exclaimed, a future Senator, then counselor, Robert Harper reminded the Senate not to diminish or dilute “the solemn exposition of impeachable offenses given by the people of the United States through the media of their constitutions” and not to “let go this anchor of personal rights and political privileges to commit ourselves to the storms of party rage, personal animosity and popular caprice.” After all, “unjust principles, adopted to answer particular purposes, are two-edged swords, which often rebound on the head of him who strikes with them.”
Without immediate dismissal of the impeachment proceedings here, the same infamy that followed the Johnson impeachment might be met with the same consequence Justice Curtis warned against a century-and-a-half ago: “of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of God’s providence, is certain to return to plague its inventors.”
Where there is no crime, there can be no conviction. Protect the Constitution; prevent this plague of illicit impeachment. Acquit President Trump as a matter of law.
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