Jan 22, 2021 Letters
President Donald John Trump’s impeachment by the U.S House of Representatives (HR) on January 13th for the “high crimes and misdemeanours” of incitement of insurrection, has generated a somewhat vitriolic debate and disagreement between two Harvard University iconic constitutional law professors – Allan Dershowitz, and Lawrence Tribe.
This debate (like most things American) has captivated a worldwide audience; it revolves around the (nostalgic) question of jurisdiction. The question is: is Trump, on becoming a private citizen on January 20th still triable, convictable and disqualifiable by the Senate (when the Speaker of the HR transmits to the Senate the Articles of Impeachment (AoI) from holding any (federal) public office (including the Presidency) in the future? Professor Allan Dershowitz contends in somewhat unaccustomed infelicitous characterization of professor Lawrence Tribe (“….. so called scholars…”; “… phony academic who claim the imprimatur of legal scholarship”, “… partisan zealots not legal scholars”) on Stephen Sackur’s HARD talk BBC TV programme on January 15th, that the Senate will have “no jurisdiction” to hold any trial of Trump the private citizen as such trial will violate the Bill of Attainder clause (BOA) of the U.S Constitution and that only a (incumbent) President is triable. Professor Lawrence Tribe contends, to the contrary, that the Senate has jurisdiction. I agree, unreservedly, with Lawrence Tribe. Allan Dershowitz is wrong. Kindly permit me space to join the debate.
I begin my short audacious disagreement with Professor Dershowitz, by drawing particular attention to these very salient factors: impeachment by the HR is not an end in itself; it is but a means/step/stage to the end of trial/conviction/disqualification by the SENATE. When the HR voted on January 13th to impeach Trump, his status was that of President, not private citizen. That status is irreversible. He was January 13th not a private citizen for the purposes of the BOA. So it cannot be a BOA (with its own procedural provisions) matter; it is an impeachment clause matter (with its own intertwining procedural provisions). The relevant and material date for determining this trial/conviction/disqualification jurisdiction in this interconnected and intertwining process is the 13th January as the process begins with impeachment, CONTINUES with transmission to the Senate of the AoI for Trump’s trial. It is this continuity that is the crux of this matter. Relevantly, and notably, the impeachment clause does not make time the essence for transmission. No time limit for transmission is prescribed. Laxity in transmission, coupled with the absence of any deeming – of – incumbency provision in the event of any contrived pre/post transmission resignation by the President, strongly militates against any necessity of (continuing) incumbency argument (the linchpin of Dershowitz’s case) which argument, ex hypothesi, renders the Congressional accountability intendment (discussed below) potentially nugatory. For the layperson grappling with an understanding of this legalese I digress to suggest that there is a striking analogy as regards the two stage HR – SENATE process, with, mutatis mutandis, what is commonly known in Guyana as a PI (in a Magistrate Court for committal of an accused) and then trial/conviction/punishment in the High Court by Judge-Jury. Would any lawyer dare to argue the legalistic nonsense that if (as an illustration) a police officer is indicted for the indictable offence of misfeasance in public office, and he is committed for trial at the PI, then the High Court will have no jurisdiction to try him if before, or at the time of trial he had ceased to be a member of the Police Force and to hold public office!
Returning to my main argument, I argue that since the MISCHIEF and object underlying the Impeachment clause in the U.S Constitution is the criminal accountability of the President of the Congress by impeachment, the constitutional scheme of checks – and – balance in the distribution of governmental powers. And since the Congress is a binary institution consisting and comprising of BOTH the HR and the Senate, then the drafters of the Impeachment clause (the 14th Amendment to the US Constitution) must have intended that this (somewhat supervisory) accountability jurisdiction (which begins with the HR) was to run and continue (in the event of a vote by the HR to impeach – as has happened in the Trump case) to the completion of the accountability process (which ends in the Senate). This jurisdictional continuity, as it seems to me, arises as a matter of sheer necessary implication, not warranting any express provision.
This continuing jurisdiction operates in personam (in respect of the person); not inrem (the Office). There is nothing illogical, anomalous, or contrary to common sense about the Senate (in its binary conceptualization) having a continuing jurisdiction to try, convict and thereupon to again vote to disqualify him as a private citizen (he having been necessarily impeached while he was president). Bear in mind in addition to the primary power of removal from office (which in Trump’s case has now become irrelevant and academic) congress also has the power to, in its discretion, vote for disqualifications, or one having committed impeachable offence(s) – the rational being that in American Constitutional jurisprudence such as a convict is unelectable.
And yet by somewhat Dershowitzan illogicality which tends to the defeat, the evasion, subversion and impairment of the whole, essential constitutional accountability – to – Congress purpose of the Impeachment clause, Trump would again be electable because the Senate, he having demitted office by constitutional expiry on January 20th, would be denied the opportunity of disqualifying him, as it would have no jurisdiction to continue to try him, possibly convict, and disqualify. I argue that such a position is a manifest absurdity- reductio ad absurdum. Would the drafters of the impeachment clause have contrived such flippant frustration of its unelectability objective?
I end with this: it is for the US Supreme Court to authoritatively decide this preliminary issue/question of jurisdiction, when, as is anticipated, Trump’s lawyers raise an objection to the Senate assuming jurisdiction to try him with a view to a vote for conviction, and allied vote for disqualification. Our own experience with Eslyn David (the 2020 General/Regional election case decided by the CCJ) warns us of the potential for procrustean methodologies and mystiques of Courts on jurisdictional questions. Lord Denning in his preface to his book “The Discipline of Law” warns us that “scholars are few”. My view is that the position taken by Professor Lawrence Tribe qualifies him as one of the few constitutional scholars.
Maxwell E. Edwards
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