your imprimatur on the snap impeachment they returned in this case and can do again in the future if you endorse it by going forward with this impeachment trial this is an untenable combination that literally puts the institution of the presidency directly at risk nothing less and it does much more under there's unsupportable constitutional theory and tortured reading of the text every civil officer who has served is at risk of impeachment if any given group elected to the house decides that what was thought to be important service to the country when they served now deserves to be cancelled and they've made clear in public statements that what they really want to accomplish here in the name of the constitution is to bar donald trump from ever running for political office again but this is an affront to the constitution no matter who they target today. it means nothing less than the denial of the right to vote and the independent right for a candidate to run for elective political office guaranteed by the 1st and 14th amendment to the united states constitution under the guise of impeachment as a tool to disenfranchise perhaps my friend put the situation simply and sharply into focus last week on his radio show my friend is a distinguished lawyer who served as an ambassador to former president obama and his friends among you he described himself to his listeners as a dyed in the wool lifelong democrat but he said the idea of 100 people in these circumstances deciding that tens of millions of american voters cannot cast their vote for their candidate for president ever again is unthinkable and it truly should be i would discuss today several reasons this matter should not must not proceed why the senate lacks jurisdiction to conduct this trial of a former president a president no longer in office and now a private citizen and he single reason in our trial memorandum or discussed today suffices but i want to start with a discussion of the fundamental due process lacking from the start and that would last through the end if this goes forward because it is this irretrievably flawed process and its product a dangerous snap impeachment the brings us here and that threatens to send a message into the future that we will all regret for ever and that stain this body which up to now our founding fathers believed was uniquely suited to the most difficult task of conducting an impeachment trial as mr hamilton wrote in federalist 65 these aren't just niceties i make no apology for demanding in your name in the name of the constitution that the rights to due process guaranteed under the constitution are it here too and the process is serious is this in our national lives. the nihil of due process in this case of course starts with the house of representatives in this unprecedented snap impeachment process the house of representatives denied every attribute of fundamental constitutional due process that americans correctly have come to believe is part of what makes this country so great how and why did that happen it is a function of the insatiable lust for impeachment in the house for the past 4 years consider this. donald trump who i may well be voting to impeach donald trump is already done a number of things which legitimately raised the question of impeached i don't respect this president and have a. great day until then. that is grounds to start impeachment proceedings those are grounds to start of each of those are grounds the start of each proceeding and yes i think that's grounds to start it's received a rise today mr speaker. to call for the impeachment of the president of the united states of america i continue to say. it's body by. banks body. so we're calling upon the house begin impeachment hearings meeting on the impeachment trial which you vote yes for i would vote yes i would i would because we're going to go in there we need some other but the fact is i introduced articles of impeachment in july of 2017 we don't impeach this president he will get reelected mouse requires me to be for impeachment having a ph but here he is this far with his caspar representatives for beginning pietschmann proceedings against this president it is time for him to trick charges against 3 men and charges my personal view is that the rich deserves an. the relevant timeline in the house reveals the rush to judgment on the day following the january 6th riot the house leadership cynically sensed a political opportunity to score points against the outgoing then president trump and the speaker demanded that vice president pence invoke the 25th amendment threatening immediate impeachment for the president if mr pence did not comply with this extraordinary and extraordinarily wrong demand 4 days later on january 11th 2021 the instant article of impeachment was introduced in the house speaker pelosi then gave rice vice president the vice president another ultimatum threatening to begin impeachment proceedings within 24 hours if he did not comply face president pence rejected speaker pelosi as demand favoring instead at hearings to the constitution and the best interests of the nation over a politically motivated threat on january 12th speaker pelosi announced to the 9 impeachment managers would be and on january 13th 2021 just days after all in a press conference to announce the launching of an inquiry the house adopted the article of impeachment completing the fastest impeachment inquiry in history. and according president trump no due process at all over strong opposition based in large part on the complete lack of due process to say there was a rush to judgment by the house would be a grave understatement it is not as if the house members who voted to impeach were not mightily warned about the dangers to the institution of the presidency and about our system to our system of due process they were warned in the strongest of terms from within their own ranks adamantly clearly and in no uncertain terms not to take this dangerous nap impeachment course those warnings were framed in the context of the constitutional due process that was denied here consider the warnings given by one member during the house proceedings pleading with the other members to accord this decision the due process the constitution demands this is representative cole of oklahoma with only one week to go in his term the majority is asking us to consider a resolution impeaching president trump and they do so knowing full well that even if the house passes the resolution the senate will not be able to begin considering these charges until after president trump's term ends i can think of no action the house can take that is more likely to further divide the american people than the action we are contemplating today emotions are clearly running high and political divisions have never been more apparent in my life time representative cole said mr cole's words on the floor emphasizing the care that must be taken with respect to the consideration of an article impeachment. echoed the concerns by our founding fathers on this subject listen to this from mr hamilton in federalist number 65 quote a well constituted court for the trial of impeachments is an object not more to be desired than difficult to be and obtained in a government wholly elective the prosecution of them for this reason will seldom fail to agitate the passions of the whole community and to divide into parties more or less friendly or inimical inimical to the accused in many cases it will connect itself with preexisting factions and will enlist all their animosities partialities influence and interest on one side or on the other in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt oppression thinking by mr hamilton as we see often. in what i say to you is a proof of the need for due process based on the critically serious nature of the singular role the impeachment process has in our government mr hamilton characterized the consideration of impeachment in these terms the delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man in gauging the administration of public affairs speak for themselves this to in federalist 65 now back to the house in the warnings against this rush to judgment in this case mr cole of oklahoma again in the name of healing a path forward he said our people so desperately need he warned that quote the house is moving forward erratic lee with a truncated process that does not comport with the modern proc practice and that will give members no time to contemplate the serious nature of action before us mr call him to sized to his colleagues that such care must be taken with the consideration of an article of impeachment quote in order to ensure that the american people have confidence in the procedures the house is following and because the presidency itself demands due process in the impeachment proceedings congressman cole continued unfortunately this is a quote the majority has chick chosen to race to the floor with a new article of impeachment foregoing any investigation any committee process or any chance for members to fully contemplate this course of action before proceeding mr cole complains the majority is failing to provide the house with an opportunity to review all the facts which are still coming to light to discuss all the evidence to listen to scholars to examine the witnesses and to consider precedents he noted further this is not the type of robust process we have followed for every modern impeachment and the failure to do so. does a great disservice to this institution and to this country mr cole said mr cole complained right on the house floor there rather than following the appropriate processes he said the house has used in every modern impeachment the majority is rushing to the floor tripping all over themselves in their rush to impeach the president impeach the president a 2nd time and mr coles were words it was doing so to quote settle scores and he warned that this snap and impeachment approach would cause great division as the country looks ahead to the start of a new administration he said to them in a matter is a grave and consequential as impeachment should we follow the same process we've used in every modern impeachment rather than rushing to the floor and implored them on behalf of generations of americans to come we need to think more clearly about the consequences of our action today and mr cole then reached across the aisle and created a member of this body senator mansion with having voiced similar sentiments about how out ill how ill advised this rushed process was suggesting that the underlying events were a matter for the judicial system to investigate not one for a rushed political process finally mr cole admonished his fellow house members telling them we need to recognize that we are following a flawed process the law mr cole sounded when he did now let us consider the process in the house that actually was do the house managers a certain a memorandum that the house serves as a grand jury and prosecutor under the constitution they told you that again today if this is accurate then they highlight the complete failure to adhere to due process. one should not diminish the significance of impeachments legal aspects particularly as they relate to the formalities of the criminal justice process is a hybrid of the political and legal a political process moderated by for legal formalities this is a quote richard brought to. the 5th amendment to the united states constitution provides an relevant part that no person shall be deprived of life liberty or property without due process of law supreme court long ago recognized in matthew vs eldridge that at its core due process is about what we all want what we all have the right to demand fundamental fairness one scholar brian owsley is written that the impeachment process should and does include some of the basic safeguards for the accused that are observed in a criminal process such as fairness due process presumption of innocence and proportionality basic american values and of course we know the supreme court is recognize the due process protection of 10 congressional investigations while congress is empowered to make its own rules of proceeding it may not make rules ignore that ignore can constitutional restraints or violate fundamental rights excuse me while the case law is limited in terms of spelling out what due process looks like an impeachment hearings. and of course in the nixon case walter not richard we know that there is a great deal of leeway afforded congress with respect to its impeachment rules it is clear that the fundamental principles that underlie our out understanding of what due process must always look like apply in hastings versus united states d.c. court case reversed to vacate on different grounds they dress the matter clearly concluding that the due process clause applies to impeachment proceedings and that it imposes an independent constitutional constraint on how the senate exercises its sole power to try all impeachments under article one section 3 clause 6 court road in hastings impeachment is an extraordinary remedy as an essential element of our constitutional system of checks and balances impeachment must be invoked and carried out with solemn respect and scrupulous attention to fairness fairness in due process must be the watchword wherein every branch of the united states government conducts a trial whether it be in a criminal case a civil case or a case of impeachment and 1974 department of justice memo suggested the same view opining that quote whether or not capable of judicial inforce meant due process standards would seem to be relevant to the manner of manner of conducting an impeachment proceeding more specifically as they sting score describe it one of the key principles that lies at the heart of our constitutional democracy again fairness. the supreme court precedents established a general rule that individuals must receive notice and opportunity to be heard before the government deprives them of a constitutionally protected interest it is also true that in any proceeding that may lead to deprivation of a protected interest it requires fair procedures commensurate with the interests at stake. impeachment proceedings plainly involve deprivations of property and liberty interests protected by the due process clause and the house surely seeks to strip donald trump of his most highly cherished constitutional rights including the right to be eligible to hold public office again should he so choose due process must apply and in a minimum due process the impeachment process must include that the evidence must be disclosed to the accused and the accused must be permitted an opportunity to test and confront the evidence particularly through the rights to confront and cross-examine witnesses which have long been recognized as essential to due process in almost every setting where important decisions turn on questions of fact due process requires an opportunity to confront and cross-examine it is unfathomable that the framers steeped in the history of anglo-american jurisprudence would create a system that would allow the chief executive and commander in chief of the armed forces to be impeached based on a process to develop evidence without providing any of the elementary procedures that the common law developed over centuries for ensuring the proper testing of evidence in an adversarial process we would never countenance such a system in this country current members of the house and senate leadership are themselves on record repeatedly confirming these procedural due process requirements indeed congressman navl or is on record asserting that in the context of a house impeachment investigation due process includes quote the right to be informed of the law of the charges against you to call your own witnesses and to have the assistance of counsel. then president trump was not given any semblance of the due process congressman nadler clearly believes he deserves based on the congressman's description of due process that must be afforded to an accused in an impeachment proceeding as reflected in a statement he made relating to another impeachment in 1998 no reason was found for the apparent change in the congressman's point of view with respect to the 2 objects of the impeachment at issue these fundamental attributes of due process have been honored as required parts of modern impeachment protocol since at least $870.00 it's not seriously debatable nor should it be nor should it be by any american legislator in spite of all this the house leadership to fight all the normal norms and denied the then president all of his basic and constitutionally protected rights for then president donald trump the house impeachment procedure like any semblance of due process whatever it simply cannot be credibly argued to the country and we do not make special rules for different targets it's the very integrity of the institution that suffers when we do and that is what the house leadership knowingly has caused a review of the house record reveals that the speaker streamlined the impeachment process house resolution $24.00 to go straight to the floor for a 2 hour debate and a vote without the ability for amendments the house record reflects no committee hearing no witnesses no presentation of cross-examination of evidence and no opportunity for the accused to respond or even have counsel present to object as the new york times recently reported there were no witness interviews no hearings no committee debates and no real additional fact finding house managers claim the need for impeachment was so urgent that they had to rush the proceedings with no time to spare for a more thorough investigation or really any investigation at all. but that claim is be lied by what happened or didn't happen next the house leadership unilaterally in by choice waited another 12 days to deliver the article to this senate to begin the trial process in other words the house leadership spent more time holding the adopted article than it did on the whole process leading up to the adoption of the article that intentional delay designed to avoid that by having the trial begin on mr trump was still president led to yet another agree just denial of due process. if you article one section 3 of our const cause 6 of our constitution of course provides important part that the senate shall have the sole power to try all impeachments when sitting for that purpose they shall be on oath or affirmation and when the president of the united states is tried the chief justice shall preside. by intentionally waiting until president's trumps president tom's term of office expired before delivering the article of impeachment to the senate to initiate trial proceedings speaker pelosi deprived then president trump of the express constitutional right and the right under the senate's own rule for to have the chief justice of the united states preside over his trial and wield the considerable power provided for in the rules of procedure and practice in the senate when sitting on impeachment trials that power includes under rule 5 the presiding officer has exclusive right to make initial orders under rule 7 to make all evidence cheery orders subject to objections by a member of the senate we say respectfully that this intentional delay by speaker pelosi such that in the intervening period president trump became private citizen mr trump constitutes a lapse or waiver of jurisdiction here for mr trump no longer is the president described is subject to impeachment in article one section 3 clause 6 and in article 2 section 4 and this body therefore has no jurisdiction as a function of that additional due process violation by speaker pelosi moreover with all due respect then president trump suffered a tangible detriment from speaker pelosi as actions which violates not only his rights to due process of law but also his express constitutional right to have the chief justice preside that tangible detriment includes the loss of the right to a conflict free impartial presiding officer with all due respect the very purpose behind requiring the chief justice to preside over the president's impeachment trial along with the other benefits of having the 2 branches combined the chief justice from the judiciary and the senate for the impeachment trial of the president reflected in federal is 661 of the reason the chief justice was taught chosen for that task. mr trump now faces a situation in which the presiding officer will serve as both judge with all the powers that the rules and down with and juror with a vote and beyond that the presiding officer although enjoying a lifelong honorable reputation of course has been mr trump's vocal and adamant opponent throughout the trump administration and in fact in the very matter on trial the presiding officer respectfully already has publicly announced his fixed view before hearing any argument or evidence that mr trump must be convicted on the article the impeachment before the senate and indeed that members in both parties have an obligation to vote to convict as well nowhere in this great country would any american and certainly not this honorable provided presiding officer consider this scenario to be consistent with any stretch of the american concept of due process and a fair trial and certainly not even the appearance of either by no stretch of the imagination could any fair minded american be confident that a trial so conducted would or could be the fair trial promised by the leader. well most procedural aspects of a senate impeachment trial may be not just the chabal political questions this is not an excuse to ignore what law and president precedent clearly require the present situation either presents a violation of the constitutional text found in the articles mention above that require the chief justice to preside when the president is on trial or is a clear denial of due process and fair trial rights for a private citizen trump to face an impeachment trial so conducted by the senate impeachment article should be treated as a knowledge and dismissed based on the total lack of due process in the house it should be dismissed because of speaker pelosi is intentional abandonment or waiver of jurisdiction if the house ever required jurisdiction and the article should be dismissed because the trial in the senate of a private citizen is not permitted let alone with the conflicts just described that attend this proceeding finally on the subject of due process in this matter i say the following this is our nation's secret constitution it has served us well since it was written and it's been amended only through a careful process it is a document unique in all the world is a foundational part of what makes the united states a beacon of light among the other nations of the world it not only has room for a tremendous variety of perspectives on the philosophical and political direction our country should take it encourages the advocacy of our differences but we have long held that fundamental to its health and well being and therefore to ours as a nation is this insistence on due process for every citizen the emphasis on the right to due process long ago was recognized as its life breath. a primary guarantor of its eternal viability as our political civic and national guiding light we all well know that there are many systems in other countries around the world that do not offer any semblance of the safeguards our constitutional concept of due process provides some of them have chosen their own handbooks which direct their citizens conduct on penalty of death this is one of them there can be no room for due process in such a system is this or the system would be lost snap decisions are required in a system like this to maintain power for one political philosophy over all others in those kinds of systems but we as a nation have rejected those systems and the kind of snap decisions they demand to maintain control for one party for one point of view and for an imposed way of life we choose to live freely under a constitution that guarantees our freedom other countries fear those freedoms and seek to ensure and here and to a party line in all civic political spiritual and other affairs and to ensure that the party line is towed in those systems have no place for due process snap decisions are removed political figures are the norm maintaining their systems depend on it that is not our way in america and never must be. we jews in america live by our constitution and its amendments and the due process this document demands for every citizen among us by putting your imprimatur on the snap judgment made in this matter to impeach the president of the united states without any semblance of due process at every step along the way puts the office of the president of the united states at risk every single day it is far too dangerous a proposition to countenance and you must resound only rejected by sending the message now that this proceeding lacking due process from start to finish must end now with your vote that you lack jurisdiction to conduct an impeachment trial for a former president whose term in office has expired and who is now a private citizen so one reason you must send this message here now is because of the complete lack of due process that brought this article of impeachment before this body god forbid we should ever lower our vigilance to the principle of due process and impeachment trial of a private private citizen trump held before the senate would be nothing more nor less than the trial of a private citizen by a legislative body and impeachment trial by the senate of a private citizen violates article one section 9 of the u.s. states constitution which provides that no bill of attainder shall be passed the bill of attainder this clause is known prohibits congress from enacting a law that legislative the term legislatively determines guilt and inflict punishment upon an identifiable individual without provision of the protections of a judicial trial a bill of attainder is a legislative act which inflicts punishment without a judicial trial a judicial trial. the distinguishing characteristic of a bill of attainder is the substitution of a legislative determination of guilt and legislative imposition of punishment for judicial finding and sentence the bill of attainder clause in the separation of powers doctrine generally reflects the framers concerned the trial by a legislature lacks the safeguards necessary to prevent the abuse of power as the supreme court explained in united states versus brown the best available evidence the writings of the architects of our constitutional system indicate that the bill of attainder clause was intended not as a narrow technical and therefore soon to be outmoded prohibition but rather as an implementation of the separation of powers a general safeguard against legislative exercise of the judicial function more simply trial by legislature the bill of attainder reflected the framers believe that the legislative branch is not so well suited as politically independent judges and juries when the senate undertakes an impeachment trial of a private citizen as it clearly understands to be the case here. supported by the facts of the chief justice is not providing and mr trump is not the president it is acting as a judge and jury rather than a legislative body and this is exactly the type of situation that the bill of attainder constitutional provision was meant to preclude it is clear the disqualification from holding future office the punishment the mad house managers intend to seek here is a kind of punishment like a banishment and others that is subject to the constitutional prohibition against the passage of bills of attainder under which under which general designation bills of pains and penalties are included the cases include cummings ex parte garland and this brown case the supreme court 3 times is struck down provisions that precluded support of the south or support of communism from holding certain jobs as being in violation of this prohibition thus the impeachment of a private citizen in order to chris qualify them from holding office is an unconstitutional act constituting a bill of attainder moreover this is the exact type of situation in which the fear would be great that some members of the senate might be susceptible to acting in the haste the house acted in when it rushed to the article of impeachment and less than 48 hours acting hastily simply to appease the popular clamor of their political base the very kind of concern expressed by mr hamilton and federalist 65 moreover. as chief justice marshall warned in fletcher versus peck it is not to be disguised that the framers of the constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment and that the people of the united states in adopting that instrument have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men and women are exposed the restrictions on the legislative power of the states are obviously founded in the sentiment and the constitution of the united states contains what may be deemed a bill of rights for the people of each state no state shall pass any bill of a tender in this form the power of the legislature over the lives and fortunes of individuals is expressly restrained and so now let's turn to the text of the constitution. turning to the text of the constitution is for many of course the most appropriate and the most important starting place for trying to answer a constitution based question there are several passage of the united states constitution that relate to the federal and beach mn process let's turn to a reading of the text now a true textual analysis of the name implies always begins with the words of the text and only resorts to legislative history or history itself if the meaning of the text is not plain as the supreme court has emphasized statutory interpretation as we always say begins with the text interpret in the text we are guided by the principle that the constitution was written to be understood by the voters it's words and phrases were used in their normal and ordinary as distinguished from technical meaning. and we must enforce plain and and unambiguous statutory language according to its terms if the president is impeached the unambiguous text of the constitution commands that the chief justice of the united states shall preside as we discussed earlier again the chief justice is disinterested and nonpartisan his presence brings dignity and solemnity to such a proceeding in this case the chief justice clearly is not presiding and the conflict of interest wouldn't necessarily just arise as a substitute for the vice president it's the appearance of a conflict of interest in the pre and a conflict of interest and the prejudgment we've discussed in this case as we say the chief justice clearly is not presiding the senate president pro tempore presiding it appears that in the leader's view unjust undoubtedly joined by other senators this is permitted by the constitution because the subject of the trial is a non president as such it is conceded as it must be that for constitutional purposes of the trial the accused is a non president the role of the senate though is to decide whether or not to convict and thereby trigger the application of article 2 section 4 the president vice president and all civil officers of the united states shall be removed from office on impeachment for conviction of trees or treat treason bribery or other high crimes and misdemeanors from which office showing non president be removed if convicted and non president doesn't hold an office therefore cannot be impeached under this clause which provides for the removal from office of the person under the pietschmann attack the house managers contend. that the fact that the chief justice is not providing does not impact the constitution of liddy of this trial notably they devote only a single paragraph of their trial memorandum to development so significant it prompted multiple senators to declare the entire proceeding suspect with got one going so far as to say that it crystallized the unconstitutional nature of this proceeding and the single paragraph that the house managers do devote to the issue is entirely unpersuasive on the merits the house managers position ignores traditional statutory canons of interpretation is well established that a term as a matter of statutory interpretation that a term appearing in several places in a statutory text is generally read the same way each time it appears this presumption is at its most vigorous when a term is repeated within a given sentence additionally the co-ordinate least one instance has referred to a broader quote established canon that similar language contained within the section of a statute be accorded a consistent meaning i know this is a lot to listen to it wants a lot of words but the words are what make our constitution frankly and the interpretation that constitution as you well know a product of words. if the text quote the president of the united states and the constitutional provision requiring the chief justice to come to preside can refer only to the sitting president and not the former presidents then the text to identification of the president contained in article 2 section 4 which makes the president amenable to impeachment the 1st place also excludes anyone other than the sitting president. in full that sentence provides that quote the president vice president and all civil officers of the united states shall be removed from office on impeachment for and conviction of treason bribery or other high crimes and misdemeanors this is the substantive phrase of the constitution vesting the conviction and removal power in the senate and it contains a clear jurisdictional limitation the house managers do understand what the word president means for purposes of other constitutional provisions and so they should understand this limitation as well only a sitting president is referred to as the president of the united states in the constitution and only a sitting president may be impeached convicted and removed a part a trial in the senate the president in article 2 section 4 and the president in article one section 3 identify the same person if the accused is not the president in one he is not the president in the other no sound textual interpretation i emphasize textual no sound text to interpretation principle permits a country reading in the words of the supreme court it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning unwittingly or unwillingly as it may be senate democrats in their announcement that senator leahy is presiding have already taken their position on this matter the accused is not the president the text of the united states constitution therefore does not vest the senate with the power to try him and remove him a factual knowledge he can't be removed from the or disqualify him a legal nobody as if you were the president house managers contend the senate has jurisdiction over this impeachment because despite the fact it is no longer the president the conduct of the former president is charged a curried occurred while he was still in office that argument is not in any way alter the constitution's clear textual identification of the president. house managers justify their strange argument by noting that the constitution's impeachment provisions are properly understood by reference to this overarching constitutional plan but with that very justification in mind their argument fails once again in an impeachment is the accused office the permits the impeachment ceasing to hold that office terminates the possibility and the purpose of impeachment private persons may not be impeached in america and so they asked you to look back at the british model the constitution as i say does not make private citizens subject impeachment the founders rejected the british model that allowed parliament to impeach anyone except for the king and so they limited impeachment to certain public officials including presidents in our country next on the text to a front the primary in fact the only required remedy of conviction is removal article 2 section 4 straightforward rule whenever a civil officer is impeached and convicted for high crimes and misdemeanors they shall be removed it is undeniable that in this instance removal is moot in every possible regard remove is a factual and legal in possibility yet the article of impeachment itself read it in the wherefore clause it calls for removal this is one reason why impeachment proceedings are different for nary trials and why the constitution point pointedly separates the 2 in ordinary criminal jurisprudence a person convicted of public crimes while he or she was in office may still be punished even though they no longer hold that office not so with impeachment and a senate impeachment trial conviction means and requires removal and conviction without a removal is no conviction at all only upon a valid conviction and its requisite in forcible removal made the additional judgment of disqualification plausibly be entertained presidents are impeachable because presidents are removable. former presidents are not because they cannot be removed the constitution is clear trial by the senate sitting as a court of impeachment is reserved for the president of the united states not a private citizen who used to be present the united states just as clear the judgment required upon conviction is removed from office and a former president can no longer be removed from office the purpose text and structure of the constitution impeachment causes confirm this intuitive and commonsense understanding so wrote judge michael luttig former judge in the united states court of appeals for the 4th circuit 4th circuit and indeed there are state court decisions that analyze this very same language and conclude that impeachment can only be entertained against an existing office or subject to removal read state versus hill from nebraska and smith versus brantley 1901 decision from the florida supreme court this is the 1st time that the united states senate has ever been asked to apply the constitution's textual identification of the president in the impeachment visions to anyone other than the sitting president of the united states and of course most significantly from a textual approach the term specifically used is the president not a president and there can be only one president the incumbent at a time judge logic relies on the textual reading for his firm conclusion that a former president cannot be impeached or convicted consider the alternative as robert delahunty professor john you have if mr trump can be convicted as the president of the language the constitution uses then why is he not still the president under the commander in chief clause for example. they are joined by professor alan dershowitz and university of chicago professor richard epstein in their focus and conclusion they point out the dangers of an approach that deviates from a focus on the text for their if there is no temporal limitation that's what they've suggested to you remember you can go back in time and impeach any civil officer who ever served for anything that occurred during the course of their service time immemorial more him with the house managers position the concept necessarily includes all former executive officers and judges including perhaps the impeachment now of jimmy carter for his handling of the iran hostage scandal as one example that flows logically from their argument without any hesitation further they ask why not then countenance a broad reading of other terms when i say they ask i mean these experts have a point on this. one i think count is a broad reading of other terms such as terms like high crimes and misdemeanors however broadly construed are intended to be exclusively the only kind of conduct intended is impeachable they conclude these experts a by writing that a non textual impeachment power would undermine the constitution's effort to make the president independent of congress a central goal of the founding fathers the authors convincingly argue for textual analysis over non textual analysis rather than over non textual reliance on a presentation of history suggesting that if one's presentation of history would control it would express the permit conduct contrary to the expressed language leading to clearly unintended results and i must tell you that i've spoken to judge ken starr at some length over this past week about this and this is a this textual approach is something he too feels very strongly about. i also have also happen to be friendly with chuck cooper by the way is a fine person also happens to be a person who has strong animus against president trump but chuck cooper is a fine lawyer and a fine person as i'm sure. our friends from alabama know as we already have discussed the rich risks to the institution of the presidency and to any and all past officers is limited only by one's imagination the weakness of the house managers cases further demonstrated by their reliance on the unproven assertion that if president trump is not impeached future officers who are impeached will evade removal by resigning either before of pietschmann or senate trial for example they contend citing various law professors that quote any official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the senate the senate's final conviction vote this argument is a complete canard the constitution expressly provides in article one section 3 clause 7 very convicted party following impeachment shall nevertheless be libel and subject to indictment trial judgment and punishment according to law after removal clearly a formal sieve a former civil officer who is not impeached is subject to the same we have a judicial process in this country we have an exact and investigative process in this country to which no former office holder holder is immune that's the process that should be running its course that's the process the billet of attainder tells us is the appropriate one for investigation prosecution and punishment with all of the attributes that that branch we're missing it by 2 articles here there in the article 3 courts provide they provide that kind of appropriate adjudication that's accountability. there are appropriate mechanisms in place for full and meaningful accountability not through the legislature which does not and cannot offer the safeguards of the judicial system which every private citizen is constitutionally entitled but more to the point here their argument does nothing to empower a different reading of the constitution's plain text that is one that reads the president in one provision to include former presidents but reads the president in the other provision to mean only the sitting president 2nd this red herring of an argument also fails because the former president did not resign even amid calls for his opponents to do so as a result the senate need not decide whether possesses the power or jurisdiction to try and convict a former president who resigned or how it might best proceed to effectuate justice in such a case that's not this case the plain meaning of the constitution's text faithful inconsistently applied should govern where the united states' center senate is vested by the constitution with the power to convict a private citizen of the united states it is not the house managers posit in a trial memorandum that despite the fact that the primary and only necessary remedy upon conviction removal is a legal knowledge this late impeachment trial is appropriate because the other secondary optional remedy that the senate is not even required to consider and which only takes effect upon a later separate vote disqualification from future office can still theoretically be employed applied to a former president the managers contend articles 2 section 4 states a straightforward rule whenever a civil officer is impeached and convicted for high crimes and misdemeanors they shall be removed. absolutely nothing about this rule implies little known requires the former officials who can still face disqualification are immune from impeachment and conviction that's what they say to tell you that today in other words so the argument goes a president no longer holding office does not moot the entirety of remedies afforded by impeachment this however also flies in the face of both the plain meaning of the text and the canons of statutory interpretation 1st of all the managers once again simply choose to ignore the text even the passage that the managers cite the word shall does to put it mildly implying a requirement and imperative such that an impeachment which removal would be impossible is invalid shall be shall the supreme court has made clear they want a statute uses the word shall congress has imposed a mandatory duty upon the subject of the command as in shout remove indeed the mandatory shall normally creates an obligation impervious to judicial discretion and. wherever the constitution commands discretion terminates shall means mandatory and shall be removed is not possible for a former officer no longer in office impeachment cannot apply and here's the end argument you may have heard about read about if you follow such things this is another one judge starr has begun in many of the textual scholars have written about. managers critically ignore this language in article one section 3 cause 7 which states that judgment in cases of impeachment shall not extend further than to removal from office and disqualification of sorry from office comma and disqualification to hold and enjoy any office of honor trust or profit under the united states ordinarily as in every day english english use of the conjunct conjunctive and in a list means that all of the listed requirements must be satisfied while use of the disjunctive or means that only one of the listed requirements needs to be satisfied judge kenneth starr subscribed strongly to this argument and understands the comment to provide further support for the reading judge michael luttig again recently argued the constitution links the impeachment remedy of disqualification from future office with the remedy of removal from the office that person currently occupies the former remedy does not apply in situations where the latter is unavailable conviction or removal or indeed inextricably intertwined if removal no longer is possible neither is an impeachment conviction judge ludwig's view is consistent with that of just joseph story just as just a story in his famous commentaries on the constitution where in story just a story analyzed impeachment is inapplicable to officials who have their position because removal of primary remedy if the impeachment process authorizes is no longer necessary judge story just a story noted that he's not coming to a. firm posit on this this this is his belief and this is his thought process there is also much force in the remark that impeachment is a proceeding purely of a political nature it is not so much designed to punish an offender as a secure the state against gross official misdemeanors it touches neither his person or his property but simply divest him of his political cat capacity. professor phil above it now this is i have to say this is all thing we heard earlier today we don't cite any scholars professor philip bobbitt is the distinguished webster professor at columbia university who along with professor charles black wrote the handbook on impeachment used for many many years he is a constitutional expert on impeachment. he has written that there is little discussion in the historical record surrounding the precise question of whether a person no longer a civil officer can be impeached and in light of the clarity of the text this is hardly surprising professor bobbitt wrote professor bob it by the way who has a rich family history in the democratic party. l.b.j. . also asserted the following as recently as january 27th 2021 arguing against holding this trial he said quote there is no authority granted to congress to impeach and convict persons who are not civil officers of the united states it's as simple as that but simplicity doesn't mean unimportance professor bob limiting congress to its specified powers is a crucial element in the central idea of the united states constitution putting the state under law professor bob it and former stanford professor university law professor richard danzig have remarked that impeachment's principle purpose as the 66th of the federalist papers makes clear. is to check the encroachments of the executive trial by jury rules of evidence and other safeguards are put aside they write because of the need to protect the publish from the public from further abuse of office similar yesterday similarly yesterday professor eugene connor over wrote the constitution provides that the impeachment process is to be used to remove all civil officers of the united states that is people holding a government position in the case of mr trump the house is reading the constitution as if it said the process applies to all civil officers of the united states and people who aren't civil officers but once were exactly what it does not say. we've been told by the house managers about this in the citations in our brief i'd like to draw your attention to page 37 this is a substantive misrepresentation to you i would respectfully suggest and it shows reflects to me a very different view of democracy a fear of democracy they rode on page 37 of their brief that the framers i'm paraphrasing the 1st part the framers themselves would not have hesitated to convict on these facts their world view this is a quote i was shaped by a study of classical history as well as the lived experience of resistance and resolution they were aware of the danger posed by opportunists who incited mobs to violence for political gain they drafted the constitution to avoid such thuggery which they associated with the threat of civil disorder and early assumption of power by a dictator the citation is $178.00 bernard balan the ideological origins of the american revolution that this book. professor balan when he gave this description of the threat of civil disorder and the early assumption of power by a dictator and thuggery was referring to early colonists view toward democracy they fear democracy that's what they call thuggery democracy because it's an elitist point of view that elitist political point of view we don't fear democracy we embrace it. in summing up let's be crystal clear. our where we stand and why we are here the singular goal of the house managers and house leadership in pursuing the impeachment conviction of donald trump is to use these proceedings does this enfranchise at least 74000000 americans with whom they viscerally disagree and to ensure that neither they nor any other american ever again can cast a vote for donald trump and if they convince you to go forward their ultimate hope is that this will be a shot across the bow of any other candidate for public office who would dare to take up a political message that is very different from their own political point of view as the direction in which they wish to take our country under our constitution this body in the impeachment process must never be permitted to be weaponized for partisan political purposes this article of impeachment must be dismissed for lack of jurisdiction based on what we have discussed here today and what's in our brief the institution of the presidency is at risk unless a strong message is sent by the dismissal of the articles of impeachment before we close i want to leave you with 2 thoughts one was expressed by abraham lincoln he comes to mind 1st because of the way in which our nation is now divided we must learn from his times he had a simple but important message about the paramount importance of doing what is right mr lincoln said stand with anybody that stands right stand with him when he is right and part with him when he goes wrong in both cases you are right in both cases you oppose the dangerous extremes in both cases you stand on moral ground and hold the ship level and steady in both your national and nothing less than national and the 2nd message thrown with mr lincoln's favorite poets who wrote in $1849.00 at a time fraught with division and risk for even more the message from another time of division is a call for hope and unity to bring strength has special meaning today poet longfellow wrote. sell forth. sell forth into the c.e.o. ship. through wind and wave right onward steer the moisten die the trimly lip and not the signs of doubt or fear self-worth into the sea of life or gentle loving trusting wife and safe from all adversity upon the bosom of that sea my comings and goings be for gentleness and love and trust prevail or angry wave in gust and in the wreck of noble lives something immortal still survives thou to sail on no ship of state sail and no union strong and great humanity with all its fears with all the hopes of future years in his hanging breathless on my feet we know what master laid that keel what workman wrought the ribs of steel who make each mask and sail and rope what angle and bull's ring what hammers beat and what a forge and what heat where shape the anger's of the hope fear not each sudden sound in shock because of the way of using his of the wave and not the rock tis but the flapping of the sail and not a rent made by the gale in spite of rock in tempests rouer in spite of false lights on the shore sail and not fear to press the sea our hearts our hopes are all with the our hearts our hopes our prayers our tears our faith triumphant triumphant over our fears are all with the are all with the. mr president it's been a long day and we thank you and we thank all the senators for their careful attention to the legal arguments and your courtesy to the managers and to the lawyers here.

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