Trump defense team should file 3 preliminary impeachment trial motions

In every trial in America, whether criminal or civil, the tribunal offers parties an opportunity to file “preliminary motions” addressing issues that by their nature need to be addressed before any trial on the merits.

Now that all the Senators, as impeachment jurors, have each taken an oath “that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, I will do impartial justice according to the Constitution and laws, so help me God,” at least three preliminary impeachment trial motions are in order.

First, President Trump‘s defense team should submit a motion to the Chief Justice for a ruling that any Senator who is a declared candidate for president shall be recused from voting in the course of the Senate carrying out its “sole Power to try all Impeachments” (Art. I, Sec. 3), at least during the ongoing presidential campaign.

This would be a purely law-based motion that the Chief Justice can decide on his own. In this regard, the Chief Justice should follow Justice Sonia Sotomayor’s guidance in her 2014 “opinion for a unanimous Court”: “The Constitution guarantees both criminal and civil litigants a right to an impartial jury. . . . There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” Warger v. Shauers, 574 U.S. 40, 50, 53 n. 3 (2014). It’s hard to imagine “juror bias” more extreme than one candidate voting to impeach another candidate.

Second, the president’s defense team should file a motion to disqualify Adam Schiff, a potential witness, from serving as a House impeachment manager. Of course, Adam Schiff cannot be both prosecutor and witness. Even if the Senate decides not to allow witnesses, whether or not Adam Schiff can be both prosecutor and witness should be resolved through a preliminary motion.

Third, the president’s defense team should file a motion to dismiss the Articles of Impeachment for failure to allege any constitutionally-required “high Crimes or Misdemeanors.”

In three prior articles on this subject, “The Caligula-esque Impeachment Congress,” “Son of Caligula Impeachment Congress,” and “The Caligula Impeachment Congress,” I recounted how Sir William Blackstone, in his 1765 “Commentaries on the Laws of England,” explained the essential properties of all man-made law (as opposed to Divine Law and Natural Law), and in this context Blackstone explained how any government must promulgate its laws in the “most perspicuous manner” available, “not like [Emperor] Caligula, who . . . wrotehis laws in very small character, and hung them up upon high pillars, the more effectually to ensnare the people.”

“There is still a more unreasonable method than this,” Blackstone continued, “which is called making of laws ex post facto; when after an action is committed, the legislator then for the first time declares it to have been a crime.”

In the two “articles of impeachment” transmitted to the Senate on January 15, 2020, Speaker of the House Nancy Pelosi, without any Republican votes, “then for the first time declares [what President Trump did] to have been a crime.”

The “Articles of Impeachment” nowhere mention any “high Crimes” or “Misdemeanors,” the sine qua non of impeachment under the Constitution, Article II, Section 4 of which provides: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

That the two “Articles of Impeachment” don’t even mention “high Crimes” or “Misdemeanors” is a fatal flaw in drafting, and its resolution need not require the Senate to address the merits.

The Senate could and should dismiss the “Articles of Impeachment” for failure to allege a Constitutionally-required violation of “high Crimes” or “Misdemeanors.”

In this regard, the following guidance from Yale Professor of Jurisprudence Charles Black in his 1974 book, “Impeachment: A Handbook,” is prescient:

When a congressman says, in effect, that Congress is entirely free to treat as impeachable any conduct it so desires to treat, he (or she) is giving a good textbook definition of a bill of attainder and an ex post facto law, rolled into one. Our Framers abhorred both of these things, and we have never wavered from that abhorrence. . . . But the spirit and equity of the bill of attainder and ex post facto clauses can to a large extent be followed if we treat as impeachable those offenses, and only those, that a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics . . . .

If the Senate dismisses the “Articles of Impeachment” for failure to allege any constitutionally-required “high Crimes” or “Misdemeanors,” that result would hold House Democrats accountable for a blatantly unconstitutional “bill of attainder and an ex post facto law, rolled into one.”

Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of “The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’” Read more reports from Joseph E. Schmitz — Click Here Now.