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,” http://puzo1.blogspot.com/2021/01/president-trump-must-immediately-file.html,
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 https://www.lawfareblog.com/supreme-court-has-no-role-impeachment
. 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
http://puzo1.blogspot.com
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Mario Apuzzo, Esq.
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