Rob Natelson wrote an earlier essay on this subject in the Epoch Times. However, this posting contains substantial additions and other differences and has been updated.
A “high misdemeanour” is “a crime of a heinous nature, next to High Treason.” — Encyclopaedia Britannica (1778)
America has a no lack of organizations allegedly concerned about civil liberties. They and their law-professor allies squawk loudly if any celebrated thug isn’t treated with strict procedural fairness.
But the impeachment trial of former President Donald Trump is another matter. Never mind that the sovereign power of the U.S. Congress has been launched to crush a private citizen. Never mind that the proceedings are grossly unfair on multiple counts. The “civil libertarians” have either fallen silent or joined the wolf pack.
On any test of fairness, the Trump impeachment proceedings fail badly. Consider the Article of Impeachment itself. It alleges no crime. It merely claims that Trump lied and pressured people and that he somehow could have “foreseen” violence. Of course politicians frequently lie and applying pressure is inherent in the political game.
That renders the Article constitutionally and legally defective. The Constitution permits impeachment only for “Treason, Bribery, or other high Crimes, and [high] Misdemeanors.” An assumption behind the Article seems to be that any bad behavior can be a “high misdemeanor.” Although there was once reason for believing that, there is little basis for believing it any more: A trove of new evidence (pdf) tells us that when the Constitution was adopted, a misdemeanor was by definition a crime. A high misdemeanor was a serious crime not meriting the death penalty. As the 1778 Encyclopaedia Britannica explained:
MISDEMEANOUR, in law, signifies a crime. Every crime is a misdemeanor; yet the law has made a distinction between crimes of a higher and a lower nature; the latter being denominated misdemeanours, the former felonies … , A “high misdemeanour” is a crime of a heinous nature, next to High Treason.
Similar definitions appear in virtually every 18th century law book that addresses the question. Early congressional statutes assume the same meaning.
Examples of “high misdemeanors” were bribery, assault, and attempted murder. A rousing speech calling for the crowd to walk in freezing weather over a mile to the Capitol “peaceably and patriotically” just doesn’t fit the bill.
So how is it fair—not to mention constitutional—to impeach under those circumstances? Answer: It’s not.
Here’s another issue of fairness: A basic theory of the Article of Impeachment is that Trump deliberately spread false information for his own political benefit—that he falsely claimed the election was stolen to further purely personal goals. But even if the charge were legally sufficient, the burden of proof still rests squarely on the prosecution. In impeachment cases, the traditional standard of proof is “clear and convincing evidence”—a formulation developed in the English High Court of Chancery, which handled cases dealing with fiduciaries. Clear and convincing evidence is a standard somewhere between “fair preponderance of the evidence” (used for civil cases) and “proof beyond reasonable doubt” (used for civil cases).
Specifically, the prosecuting House managers must demonstrate decisively (1) that the election was fair, (2) that Trump had no reasonable grounds for believing otherwise, and (3) that he lied to foment insurrection.
That means the prosecution should be required to call witnesses to testify as to the accuracy of the election returns in each swing state. The House managers should be prepared to demonstrate that Trump had no evidence to the contrary. And they should be prepared to demonstrate how Trump deliberately lied to provoke insurrection.
The prosecution has introduced almost no evidence on any of these points. Indeed, the Capitol incursion doesn’t even fit he common understanding of “insurrection.” It was a simple riot. By contrast, many of the Antifa-BLM activities last year tolerated and promoted by “progressive” politicians really were insurrections: Remember Seattle’s “Capitol Hill Autonomous Zone”—permitted and even celebrated by city authorities?
So if the prosecution doesn’t have the proof they need, why bring the impeachment? One reason often cited is pure hatred of the former president. Another may be to try to damage him politically so he can never run again. I believe the dominant political calculation behind impeachment is to keep the 2020 election irregularities off the public radar and to render discussion of them impermissible in polite society. Which is a shame, because election integrity ultimately is more important to the country than the impeachment of any former president.
Here are some other types of unfairness in these proceedings that should have the “civil libertarians” howling in protest:
- The House of Representatives impeached Trump without investigation, without a hearing, and without giving him a chance to defend himself. This was technically constitutional, but it broke tradition and was unfair.
- Instead of choosing a reasonably impartial presiding officer, the Senate has selected a bitter Trump foe.
- Many senators—the supposed jurors—already have announced their votes.
- The Senate did not inform Trump, his lawyers, or anyone else of the rules governing the trial until the date before it began.
- In violation of attorney ethical standards, House manager Rep. Jamie Raskin (D-Md.) communicated directly with another lawyer’s client in an adverse proceeding. This was the letter Raskin sent directly to Trump “inviting” him to testify. Raskin is a lawyer and should have known he was acting unethically.
- Moreover, Raskin’s letter said that if Trump failed to testify that the Senate would draw “a strong adverse inference regarding your actions.” But it is Raskin’s side, not Trump’s, that has a heavy burden of proof. Unless subpoenaed, Trump has no obligation to testify, and the Senate has no right to draw “inferences” from anything but evidence duly introduced.
- Raskin secured admission of videos that were hearsay, heavily doctored, and unsupported by sworn testimony. More on that in a later column.