Sunday, January 17, 2021

President Trump Needs to Make His Impeachment Defense First In Court Before Making It In the Senate


President Trump Needs to Make His Impeachment Defense First In Court Before Making It In the Senate

By Mario Apuzzo, Esq.

January 17, 2021


1868 Impeachment Trial  of President Andrew Johnson 

ABC News is reporting the following:  

President Donald Trump's personal attorney Rudy Giuliani tells ABC News he's working as part of the president's defense team in his upcoming second impeachment trial -- and that he's prepared to argue that the president's claims of widespread voter fraud did not constitute incitement to violence because the widely-debunked claims are true.


"They basically claimed that anytime [Trump] says voter fraud, voter fraud -- or I do, or anybody else -- we're inciting to violence; that those words are fighting words because it's totally untrue," he said. "Well, if you can prove that it's true, or at least true enough so it's a legitimate viewpoint, then they are no longer fighting words."

I am glad to see that President Trump’s legal team has focused on the impeachment defense of presenting evidence of the alleged election irregularities to the Senate during the impeachment trial.  As I explain in my previous article, “President Trump Must Immediately File A Declaratory Judgment Action to Vindicate Himself and Put an End to the Election Controversy and New Impeachment,”, if the election in the six or seven contested states can be shown to be invalid, then President Trump did not “lie” to the American people and his speech is protected by the First Amendment. Such a showing would destroy the factual predicate of the Article of Impeachment.   

But Trump bringing his case to the Senate rather than first to a court of law is a grave error.  As I explained in my article, Trump needs the declaratory judgment action against the House of Representatives and Congress as a whole to be able to establish what are the facts regarding the election in the six or seven contested states and what was his role concerning the Capitol invasion of January 6, 2021.  The problem with having in the first instance the trial of those issues in the Senate is that Trump would not have the same due process rights in the Senate that he would have in a court of law.

He needs to exercise those due process rights so that he can later demonstrate in the Senate that he did not commit any “high Crime[]” or “Misdemeanor[].” An impeachment trial in the Senate does not afford Trump the same due process rights he would have in a court of law. As we witnessed in President Trump’s first impeachment, there is no real legal standard as to what a high crime or misdemeanor is.  The interpretation and application of those words is rife with political bias existing in any given moment of history. For example, then-House Minority Leader Gerald R. Ford in 1970 defined the words thus: "The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.  Again, the historical context and political climate are important."  Gerald Ford's Remarks of April 15, 1970 on the Impeachment of Supreme Court Justice William Douglas Archived April 12, 2019, at the Wayback Machine. Retrieved January 17, 2021. Hence, Trump needs to develop and prove as much factual information as he can in a hopefully dispassionate court of law before a jury free of passion, prejudice, and sympathy prior to the Senate trial in order to meet that political challenge there.   

Trump would not have in the Senate the same discovery and subpoena powers that he would have if he first filed the declaratory judgment action in federal district court.  A court of law has more power and will to sanction discovery violators than would a politically charged Senate. The rules of evidence apply in a court but not in the Senate.  Neither a civil nor criminal court would allow as we saw in the House of Representative a witness to offer that President Trump is the “white-supremacist-in-chief,” clearly irrelevant and inflammatory, as evidence of liability or guilt with respect to the Capital invasion. 

Furthermore, just showing that he spoke the truth about the election irregularities is not sufficient.  Trump also must demonstrate that he did not cause the Capital violence and invasion.  The issue of causation (is Trump’s speech a legal cause of the violent invasion of the Capitol) can better be presented and argued in a court of law, which is highly experienced with the complexity of the causation issue. Consider how the politically charged members of the House of Representatives during the impeachment trial basically ignored the fundamental issue of causation.  Like in the House of Representatives, we cannot expect a similarly politically charged Senate to give to the causation issue the respect that the law demands it deserves. In the Senate, like we saw in the House of Representatives, Trump would probably be subjected to that body’s political judgment however tainted and a victim of our current political and social “cancel” culture rather than to any legal judgment. Simply stated, Trump cannot expect to receive due process of law in the Senate that he would receive in a court of law.         

Corporate interests have significantly cut President Trump’s ability to communicate with the American people and the world.  They are therefore interfering with his political speech and ability to defend himself and the nation.  With a lawsuit in court, President Trump can fully defend himself by taking action to show that he did not commit any wrong.  There, he would also have the right to have a jury of the people decide the facts based on admissible testimony, exhibits, and stipulations rather than the politically motivated Senate acting as a jury.  Finally, he would also be able to appeal to the Circuit Court of Appeals and have a path to the U.S. Supreme Court, if necessary. There is no appeal in an impeachment trial by the Senate. Even if he were to file an appeal to a court of a Senate conviction, that court would most likely rule that it has no jurisdiction because what happened there is a political question and nonjusticiable. See .  After developing his evidence and factual record in court, he can then stand fully prepared to challenge his impeachment trial in the Senate.  Trump’s legal team should also seek a court order staying the impeachment trial pending completion of his declaratory judgment action. 

The due process rights outlined above, among others, are fundamental to our justice system.   Hence, all roads lead to President Trump having to bring his case to a court of law first before he brings his case to the Senate.  Legal action in a court is the only way that he can hopefully receive the due process and justice to which he is entitled. 

Mario Apuzzo, Esq.
January 17, 2021


Copyright © 2021
Mario Apuzzo, Esq.
All Rights Reserved


mtngoat61 said...

Keep up the good work Mario.

Mario Apuzzo, Esq. said...

A “Henry Wilson” posted a comment at the Post & Email, , in response to this article which that website also published there. He said:

“If impeachment is a political process, then it would never see the inside of a courtroom.”

My response:

Trump would not bring the "impeachment" inside the courtroom. Rather, he personally (not some third party with no standing) would bring to the courtroom his real live controversy with Congress regarding the election in the contested states and the invasion into the Capitol. The issue of removing Trump via impeachment would not be before the court. Trump needs the findings of the court so that he can later defend himself in the impeachment trial. Trump's dispute with Congress is a real live controversy that can be resolved through court action.

What I recommend is a way that Trump can have his due process rights enforced, something which would most likely not happen in the Senate as it did not happen in the House.

ajtelles said...

Hi Mario,

In the ultimate paragraph you wrote, "The due process rights outlined above, among others, are fundamental to our justice system."

That is true, but it seems to me that "due process" is not in the vocabulary of the Democrat and Republican anti-Trumpers. The shallow thinkers simply DON'T CARE!!!

As Diana West has written many times, "the issue is NOT the issue. The "issues" is ALWAYS the "revolution". The ancient ideological foe, the communist ideology of superiority is the ONLY issue, and President Trump is simply the latest victim.

From his website, ( "Jeffrey Prather is a retired army officer, ex-DEA special agent, former DIA intelligence officer turned whistle blower and then targeted by the government.

"In addition to hosting his own call in weekly talk radio show, “The Prather Point”, he is also a martial arts master and teacher, Apache wisdom teacher, Kinetic Quotient creator and trainer, firearms and horsemanship instructor, published author, SAG film actor, speaker, father, husband and chaplain".

In his YouTube channel today, Tuesday, January 19, 2021, Jeffrey Prather has a wise comment about the real "issue" of the day, and they are not legal points, because, as I wrote, the shallow thinkers simply DON'T CARE about the "legal" issues.

>> At 10:15 -

"Much is happening.
"This is a global world war 4.
"World war 3 was the global war on terror.
"Global means world war.
"World war 3 is over.
"World war 4 is on,
and it is covert fifth generational,
psychological warfare,
and the terrain is human;
not physical".

President Trump is simply the latest victim in the "revolution" to "transform" America and to "occupy" the Oval Office.

Unless President Trump, to protect America from enemies foreign and domestic, has something up his sleeve for tonight, Tuesday January 19 and tomorrow January 20, 2021, America experienced a successful "marxist" coup on January 6, 2021, and there's NOTHING anybody can do about it as long as the Chinese Communist Party (CCP) is protecting, for only one example of many, Senator Mitch McConnell and his wife Elaine Chao and their shipping business with China that is ONLY possible with the permission of the CCP.

Mario, with the cancel culture as exhibited by Facebook, Twitter, Google, this kind of comment will probably be flagged as undesirable in the future.

Just sayin'.


Mario Apuzzo, Esq. said...

Henry Wilson posted another comment to this article at Post & Email. This one says:

“The impeachment’s triers of fact — the Senate — wouldn’t be bound by the court’s findings.”

My response:

Now, you are really stretching this thing to save your position. I would like to see the Senate refuse to comply with a valid judgment of a court of law, especially if it is that of the U.S. Supreme Court.

ajtelles said...

Hi Mario,

Relative to President Trump's success with "due process" if the Supreme Court rejects Trump's "standing" in court, and why "due process" is NOT in the vocabulary of the Democrat and Republican anti-Trumpers and shallow thinkers in the House and Senate (whether or not Trump makes it to the Supreme Court), here is an interview with James Lindsay, co-author with Helen Pluckrose, of "Cynical [Critical] Theories".

His comments help to clarify my comment yesterday (January 20, 20201 at 1:10 AM) - "President Trump is simply the latest victim..." in the "marxist/communist" "revolution" to "transform" America and to do whatever it takes to] "occupy" the Oval Office" and control the U. S. military to the benefit of the Chinese Communist Party (CCP).


"Is the US facing Leninism 4.0, a new wave of Communism?

"That's according to Dr. James Lindsay, author of the book Cynical Theories and an expert on critical theory and critical race theory.

"On today's America Uncovered, he takes us through the evolution of thought from the Frankfurt School, to Antonio Gramsci, modern movements like Black Lives Matter, and what cultural Marxism could mean for freedom of speech".

As Diana West likes to say and which I like to quote because it pertains, the issue [of the day] is NOT the issue. The issue is ALWAYS the revolution.

When the insurgents masquerading as Trump supporters broke into the U. S. Capitol on January 6, 2021, they did so as agitators of innocent Trump supporters who may have been caught up in the frenzy. There are reports that the real intent was to burn the place down, similar to the "night of broken glass" in Germany which Hitler used against his opponents similar to the way that the Democrat and Republican anti-Trumpers, the real “insurgents”, are accusing the Trump supporters of being the insurgents.

On November 3, 2020 when the “steal” of the election succeeded and was defended by scared out of their common sense wits Democrats and Republicans in the House and Senate on January 6, 2021 AFTER the “night of broken glass” 2.0 breach of the U. S. Capitol building scared them, America experienced a long planned takeover of the U. S. government...and the U. S. military...and the “CCP” is very happy with 46th President Joseph “what a guy” Biden and his family, their highly paid puppet family...and the marxist “insurgents” in AND out of government, the enemy within America, DON’T CARE if anybody knows it because there is absolutely NOTHING anybody can do about it, and American patriots (who are being called “terrorists” because they continue to cry election fraud) won’t be able to do anything as long as the vote is rigged.

It seems to me that because the “rigging” of the election worked again so why stop? is what the enemy within and without America, the real insurgents think of “due process”...but, I could be wrong, of course. I’m just one guy living in El Paso, Texas, so, what do I know?


ajtelles said...

Hi Mario, again

Correction to my previous reference to the "night of broken glass".

I meant the Reichstag fire of the parliament building.

Sometimes Wikipedia is ok. This is one of them.

"The building caught fire on 27 February 1933, under circumstances still not entirely known. This gave a pretext for the Nazis to suspend most rights provided for by the 1919 Weimar Constitution in the Reichstag Fire Decree, allowing them to arrest Communists and other enemies, and increase police action throughout Germany".

Going after enemies of the state is what is happening to Trump supporters after January 6, 2021 who are still being called pro-Trump "rioters" with language intended to deceive the innocent who are simply uninformed.


Mario Apuzzo, Esq. said...


It would be a gift to humanity for President Trump to assert his due process of law rights in a court of law. Such decisive action would show the world the true meaning and value of law versus politics.

ajtelles said...

Hi Mario,

Dittos to your larger point of "law versus politics".

However, with support for President Trump being met with "cultural Marxism" racist language designed to inhibit freedom of speech against the state under the control of the "cultural marsists", which state and/or federal judge will step up to the plate and defend President Trump's rights? President Trump's "rights' = the "rights" of WE the People to speak freely without being called an enemy of the state simply because we supported President Trump's agenda and Make America Great Again vision. That kind of repression of freedom of thought and speech is "education camp" repression.

If President Trump can assert in a court of law his "due process of law rights" to get the ball rolling to identify the real enemy "insurgents" who perpetrated the November 3, 2020 election "steal" and the real enemy "insurgents" who perpetrated the January 6, 2021 U. S. Capitol breach with the intent to damage the building (the Reichstag fire 2.0), that would be a good sign of equal justice. However, four years is a long time to hold our collective political breath for "equal justice under law" under Biden’s globalist/internationalist vision. It seems like the CCP agrees with Biden’s “vision” because the CCP sanctioned a few top U. S. government officials within minutes of the inauguration.


“China’s Foreign Ministry on Wednesday imposed sanctions on 28 individuals associated with the administration of U.S. President Donald Trump for allegedly violating Chinese sovereignty”.

Well, since the law which disappeared on November 3, 2021 and the disappearance was confirmed on January 6, 2021, that's the way it seems to me today on January 20, 2021. We'll see what happens tomorrow...uh, I mean, when the 25th Amendment is used to remove President Biden from office for "failing health" and Kamala Harris becomes the 47th President and commander in chief of the U. S. military. Wow. What a thought.


Mario Apuzzo, Esq. said...

President Trump making his case in a court of law by way of declaratory judgment action against the House, Senate, and whole Congress under 28 U.S.C. §2201 and F.R.C.P. 57 would not only provide him with the evidence he needs to effectively defend himself in the Senate impeachment trial and in any possible later criminal prosecutions, but would also significantly aid the defenses of Senator Josh Hawley, Senator Ted Cruz, Rudy Giuliani, Parler, and any other target of ambitious and corrupt political operatives.

NBC said...

At the time of the trial, Donald J Trump is a private citizen.

Under what authority, does the U.S. Senate have to conduct a trial of a private citizen and to either acquit or convict a private citizen?

Mario Apuzzo, Esq. said...

There are valid historical and constitutional arguments on both sides of the issue of whether the Senate can still have an impeachment trial of Trump now that he is out of office. Remember that impeachment is a political process. Also, remember that the House impeached Trump while he was still President. Trump would risk losing on the issue with no court willing to exert jurisdiction over the matter. See Nixon v. United States, 506 U.S. 224 (1993) (the question of whether the Senate had properly tried an impeachment was a political question over which the court had no jurisdiction). Hence, to be safe, he must take the bull by the horns and bring his declaratory judgment action against the House, Senate, and whole Congress in federal district court so that he will be able to develop the evidence he needs to defend himself in a politically charged Senate trial.

NBC said...

H.Res.26 - Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

The trial would be regarding Donald John Trump, "President of the United States."

The indictment (impeachment) is moot since it's against the President of the United States. It should be rejected as such from the Senate at the get go.

The indictment is now Moot.

Carlyle said...

The accusation against Trump is that he caused a riot by making false claims. Therefore it seems that his defense would be showing that the claims were not false. Doesn't give him, at last, a proper platform to demonstrate that the fraud was real and pervasive? Isn't that a pandora's box that the dems don't want opened?

ajtelles said...

Hi Mario,

Here's a legal question.

Does "citizen" Donald Trump have "standing" to go to federal court against the U. S. Congress if no federal judge wants to take the case? Does any "citizen" have standing simply because they don’t like what the federal legislature has said about them and “committed” a political act in the “no go zone” of the House or Senate where the legislators can lie with impunity?

A legislative impeachment (indictment) is a political act. Right?

What is the "legal" issue which allows any "citizen" to bring a "...declaratory judgment action against the House of Representatives and Congress as a whole" who impeach the conduct of a “citizen” under the color of legislative “law”?

The "critical theory" foot soldiers (the November 3, 2020 ballot vote counters) did their part in the successful November 3, 2020 marxist revolution "coup", and their "comrades" did their part on January 6, 2021 with witless help of Vice President Mike Pence and his egregious (“offensive”) error in judgment about his authority under Article II Section clause 1 of the Constitution, and now the WE DON'T CARE (“we don’t need no stinkin’ badges” of authority) legislators, Democrat and Republican are doing their part with impeachment and a trial of a "citizen", President Trump, who really represents you Mario, me, and all U. S. Citizens.

In a sense, the opening words of The Communist Manifesto by Marx and Engels are relevant today in 2021:

“A spectre is haunting Europe [America] – the spectre of Communism. All the powers of old Europe have entered into a holy alliance to exorcise this spectre.


“I. Communism is already acknowledged by all European Powers to be itself a Power.

“II. It is high time that Communists should openly, in the face of the whole world, publish their views, their aims, their tendencies, and meed this nursery tale of of the Spectre of Communism with a Manifesto of the party itself.

“To this end, Communists of various nationalities have assembled in London, and sketched the following manifesto, to be published in English, French, German, Italian, Flemish and Danish languages”. … .

Mario, with 78 year old President Joe “Beijing” Biden, and 70 year old Senator Chuck Schumer and 80 year old Representative Nancy Pelosi running interference for “Beijing” Biden with hair or fire hatred for President Trump and his supporters whom Pelosi calls “insurgents”, who in the federal government and in the “WE the People” law and order world will have the intellectual and political muscle to speak truth to the ancient of days federal government power brokers?

Just askin’ for 75 million MAGA men and women voters.


ajtelles said...

Hi Mario,

In my previous comment (January 23, 2021 at 11:55 PM) I referenced "Article II, Section, clause 1". The correct reference is Article II, Section 1, clause 2 (A2 S1 c2).

I’ll take this opportunity to clarify something as I understand it about Vice President Mike Pence, a good man but obviously, as exhibited on January 6, 2021, subject to pressure from the Democratic and Republican anti-Trumpers who exhibited their hair on fire DON’T CARE feelings about President Trump. If Pence had stuck to his rhetoric in his speeches about counting ONLY “legitimate” votes Trump would be serving his second term and “Beijing” Joe Biden would be napping somewhere with his son Hunter and with his brother James.

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector".

Vice President Mike Pence made an error in judgment when he alone "decided" that he "alone" did NOT have the authority under A2 S1 c2 to allow a 10 day recess in counting the electoral count so that the legislatures of the states which had requested time could clarify their certifications. The intent of the language of A2 S1 c2 does not prohibit a delay beyond January 6 for the same reason that January 6 is itself the electoral count date...that’s what the Congress wanted even though January 6 is not written in the A2 S1 c5 language. The only date certain is January 20 (unless amended back to the original month of March). The arbitrary January 6 day to count the electoral college votes is not set in stone or in the Constitution. Pence had constitutional authority to take a break from counting because he was not being asked to "decide" for or against President Trump. He was being asked for time to let the legislatures of the states clarify certification. Period.

Vice President Pence misrepresented the issue as to what he was being asked to do. He thought he was being asked to overturn the election. That represents an error in judgment. He blew it big time for ALL time. If he had done the “right” thing as requested by the legislatures of the states, NOT the politically correct thing that the “WE DON’T CARE” what is right and honorable Democratic and Republican anti-Trumpers were pressing him to do (ignore the constitutional flexibility to delay), Pence would have been a natural candidate for President after Trump’s second term, but now Pence will NEVER be elected president. Period.


Prof said...

Answer: Donald J.Trump and Mario Apuzzo, just for starters.

Submitted by: Christina Jeffrey