risk. nothing less. it does much more. under their unsupported theory, every civil officer is at risk of impeachment if any given group elected to the house decides what was thought to be important service to the country when they served now deserves to be cancelled. they have made clear in public statements that what they want to accomplish is bar donald trump from running from political office again. this is an affront to the constitution no matter who they target today. it means nothing less than a denial of the right to vote and the independence right for a candidate to run for elected political office guaranteed by the first and 14th amendments to the united states constitution. under the guise of impeachment as a tool to disenfranchise. perhaps my friends put the situation simply and sharply last week on his radio show. my friend is a lawyer that serves as an ambassador to former president obama and has friends among you. he described himselves a died in the wolf life-long democrat. but he said, the idea of 100 people in these circumstances deciding that tens of millions of american votesers can not cast their vote for their candidate for president ever again is unthinkable. and it truly should be. i will discuss today several reasons this matter should not and 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 any single reason in our trial memorandum discussed today suffices. i want to start with a discussion of the fundamental due process lacking from the state. it would last through the end if this goes forward. because it is this irretrievably flawed process and its product a dangerous snap impeachment that brings us here and that threatens to send a message into the future that we will all regret forever. and that stains this body, which all till now, our founding fathers believed was uniquely suited for the most difficult task of conducting an impeachment trial as mr. hamilton wrote in federalist 65. these are not 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 adhered to and a process as serious as this. in our national lives, the denial of due process in this case starts with the house of representatives. in this unprecedented snap impeachment process, the house of representatives denies every due process that americans correctly have come to believe is part of what makes this country so great. it's a lust for impeachment in the house for the past four years. consider this. >> i want to say this for donald trump who i may well be voting to impeach. >> donald trump has done a number of things which legitimately raise the question of impeachment. >> i don't respect this president. i will fight every day until he is impeached. >> that is grounds to started impeachment proceedings. those are grounds to start impeachment proceedings. >> yes, i think that's grounds to start impeachment proceedings. >> i rise today, mr. speaker, to call for the impeachment of the president of the united states of america. i continue to say impeach him! impeach 45! impeach 45. >> so we're calling upon the house to begin impeachment hearings immediately. >> on the impeachment of donald trump, yes or no. >> i would vote yes. >> we're going to impeach the [bleep]. >> if we don't impeach this president, he will get re-elected. >> representatives should begin impeachment proceedings against this president. >> it's time to do impeachment charges against him. >> bring impeachment charges. >> my personal view is that he deserves impeachment. >> here at an impeachment rally and we're ready to impeach! >> the relevant time reveals the rush to judgment. the date following the january 6 riot, the house sensed a political opportunity to score points against the outgoing then president trump and the speaker demanded that haven't pence invoke the 25th amendment threatening immediate impeachment for the president as mr. pence did not comply with this extraordinary wrong demand. four days later, on january 11th, 2021, the articles of impeachment was introduced in the house. speaker pelosi gave the vice president another ultimatum threatening to begin impeachment proceedings within 24 hours if he did not comply. vice president pence rejected speaker pelosi's demand favoring instead adherence to the constitution and the best interests of the nation over a politically motivated threat. january 12th speaker pelosi announced to the nine impeachment managers and january 13, 2021, days after holding 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 giving 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's not as if the house members were warned about the dangers to the institution of the presidency and our system of due process. they were warned in the strongest of terms within their own ranks. adamantly clearly not to take this dangerous snap 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 to to you process of the constitution demands. this is representative cole of oak. "with only one week to go in his term, the majority is asking us to consider a resolution impeaching president trump. they do so knowing full well even if the house passes the resolution, the senate will not be able to consider these charges until after the president'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. i motions are clearly running high and political divisions is a never been more apparent in my lifetime." representative cole's words on the floor emphasizes the care that must be taken with the arm of impeachment echoed our founding fathers on this subject. listen this to from mr. hamilton in federalist 65" a well-constituted court for the trial of impeachment is not to be desired and difficult to be obtained in a government holy elective. the prosecution of them for this reason will seldom fail to agitate the passions of the community and divide into parties to the accused. in many cases, it will connect itself with pre-existing factions and enlist all of their animosities partialities, influence and interest on one side or the other. in such cases, always 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. what i say to you is the need for due process based on the critically serious nature of the singular role the impeachment process has in our government. mr. hamilton character sized the consideration of impeachment of these terms. the delicacy that considers the political reputation and existence of every man engaged in the administration of public affairs speak for themselves" in too in federalist 65. now back to the house and the warnings of the rush judgment in this case. mr. cole of oklahoma again. "in the name of heal ago path forward our people need, he warned that" the house is moving forward erratically with a truncated process that does not comport with the modern practice and that will give members no time to contemplate the serious nature of action before us. mr. cole emphasized to his colleagues that such care must be taken with a consideration of an article of impeachment. "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 the majority has 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 that 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, examine the witnesses and to consider precedence. it's noted further, this is not the type of robust process that 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 on the house floor that 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 a second time. in mr. cole's words, it was doing so to "settle scores".-he warned this snap 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 as grave as consequential as impeachment, shouldn'ts we follow the same process rather than rushing to the floor? he implored them on behalf of generations of americans to come, we need to think clearly about the consequences of our action today. mr. cole reached across the aisle and credited a member of this body, senator manchin. with having voiced similar sentiments about how ill-advised this rush process was. suggesting 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 saying we need to recognize that we're following a flawed process. the alarm went unheeded. now let's consider the process in the house that was due. the house manager in a certain memorandum that the house serves as a grand jury and prosecutor under the constitution. they told you that today. if this is accurate, then they highlight the complete failure to adhere to due process. one should not diminish the significance of impeachment 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 legal formaliforma a quote richard broughton. the fifth amendment to the us constitution provides that no person shall be deprived of life, liberty or process would you due process of law. the supreme court recognized at its due process is about what we all want. what we all have the right to demand. fundamental fairness. one scholar has written that the impeachment process should and does inadopt the constitution some of the basic safeguards for the accused that are observed in a criminal process like fairness, due process, presumption of innocence and proportionality. basic american values. the supreme court has recognized the due process of ten congressional investigations. while congress is empowered to make their own rules of proceeding, they may not violate fundamental rights. while the case law is limited in terms of spelling out what due process looks like in impeachment hearings, and of course in the nixon case, walter not richard, we know there's a great leeway afforded congress with respect to impeachment rules. it's clear the principles that underlie our understanding of what due process must always look like apply in hastings versus united states, d.c. court case. they address the matter. clearly concluding the due process clause applies to impeachment proceedings and imposes an independent constitutional constraint on how the senate exercises its sole power to try all impeachments under article 1, section 3, clause six. the court wrote that impeachment is an extreme remedy. as a part of our checks and balances, impeachment must be invoked and carried out with solemn respect and attention to fairness. fairness in due process must be the watch word where in ever a branch of the united states government conducts a trial whether it be in a criminal case or civil case or case of impeachment. a 1974 department of justice memo suggested the same view opining that whether or not capable of judicial enforcement, due process standards would be relevant to the manner of conducting an impeachment proceeding. more specifically, the hastings court described it, one of the key principles that lies at the heart of our constitutional democracy. again, fairness. the supreme court established the general rule that individuals have to have notice and an opportunity to be heard before the government deprives them of a constitutionally protected interest. it's 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 planely involve deprivations of property and liberty interests protected by the due process clause. the house surely streak to strip donald trump of his constitutional rights, including right to be eligible to hold public office again should he so choose. due process must apply and at a minimum due process and 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 reckonized to due process. due process requires an opportunity to confront and cross examine. it's unfathom able that a system would be created that would allow the chief executive and the commander-in-chief of the armed forces to be found guilty without using any of the procedures that the common law developed for ensuring the proper tests of evidence in an adversarial process. we would never use such a system in this country. current members of the house and senate leadership are on record confirming these procedural due process requirements. congressman nadler is on record asserting that in the context of a house impeachment investigation due process includes 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 believes he deserves. based on his description of due process that must be afforded to an accused an impeachment proceeding as reflected in a statement he made relating to another impeachment in 1998. no reason was for for the change in the congressman's point of view with respect to the two objects of impeachment at issue. these funds mental attributes of do process are part of modern impeachment since 1870. it's not debatable or nor should it be by any american legislator. in spite of this, the house leadership denied the then president all of his basic protected rights. for then president donald trump, the house impeachment procedure lacked any semblance of due process whatsoever. it cannot be 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's what the house leadership has caused. a debate and vote was sent straight to the floor without a vote. the house show notice committee hearing, no evidence, no opportunity for the accused to respond or 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 rather than any investigation at all. that claim is belied or what didn't happen next. they waited another 12 days to deliver the articles to this senate to begin the trial process. the house leadership spent more time holding the adopted article than i'd did it on the pro said leading up to the adoption of the article. that delay designed to avoid having the trial begin while mr. trump was still president led to yet another egregious denial of due process. article 1, section 3, clause 6 provides in permanent part that the senate shall have the sole power to try all impeachment. they should be on oath or affirmation. when the president is tried, the chief justice shall preside. by intentionally waiting until president trump's term of offers expired before delivering the articles to initiate trial proceedings, speaker pelosi denied president trump of the right understand the senate's own rule 4 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 officers right to make initial all orders under rule 7 to make all evidencery orders. we say respectfully this intentional delay by speaker pelosi, president trump bake mr. trump, constitutes a weigher of jurisdiction here. for mr. trump is no longer the president described to impeachment in article 1, clause sick and article 2 section 4. this body has no jurisdiction as a function of that day process violation by speaker pelosi. moreover with all due respect, then president trump suffered a tangible detriment from speaker pelosi's 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 right of not having the officer with all due respect. along with the other benefits of having to two branches combined. the chief justice from the judiciary and the senate. for the impeachment trial of the president reflected in federalist 66. one of the reasons the chief justice was 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 endow him with and juror with a vote. beyond that, the presiding officer, enjoying a life long honorable reputation of course has been mr. trump's focal 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 articles of impeachment before the senate and indeed members of both parties have an obligation to vote to convict as well. nowhere in this great country would any american and certainly not this honorable presiding officer consider this scenario to be consistent with any stretch of the american concept of due process and a fair trial. 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. while most procedure aspects would be political questions, this is not an excuse to ignore what law and press dents require. the president's situation prevents a violation of the constitutional text found in the articles mentioned above when the chief justice preside while the president is on trial or a clear denial of due process for private citizen trump to face an impeachment trial so conducted by the senate. impeachment articles should be treated as a untilty and dismissed in the house. it should be dismissed because of speaker's pelosi waiver of jurisdiction. if the house acquired jurisdiction. the articles 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, i'd say the following. this is our nation's sacred constitution. it has served us well since it was written. it's been amended through a careful process. it's a document unique in all the world. it's a foundational part of what makes the united states a beacon of light among the other nations of the world. not only has room for tremendous variety of perspectives on the philosophical direction our country should take, it's encourages the advocacy of our differences. we have long held that fundamental to its health and well-being is its insistent on due process for every citizen. the emphasis on the right to due process long ago was recognized as the 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 have chose their own hand books. this is one of them. there can be no room for do process in a system like this or is system would be loss. snap decisions are required in a system like this to maintain power for one political philosophy over all others. those kinds of systems. but we as a nation have rejected those systems and the kind of snap decisions that they demand to maintain control for one party, for one point of view a 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 assure adherence to all civic, political and spiritual affairs and to ensure the party line is toed in those systems have no place for due process. snap decisions that remove political figures of the norm, maintaining their systems depend on it. that's not our way in america. we choose an america that lives by our constitution and amendments and the due process the document demands for every citizen among us i by putting your decision on the snap judgment in this matter to impeach the president puts the office of the president of the united states at risk every single day. you must resoundedly reject it 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 now a private citizen. >> so one reason you must send this message now is because of a due lack of process. god forbid that we lower our due process. an impeachment of private citizen trump before the senate would be nothing or more or less the private trial. the constitution provides no bill of attaineder shall be passed. the bill of atainder prohibits congress from acting a law that determines guilt and inflicts punishment upon an identifiable void without provision of the protections of a judicial trial. the bill of attainder 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 punish meant for judicial finding and sentence. the bill of attainder clause generally reflects the framer's concern that 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 says the attainder clause was intended not as a narrow and soon-to-be prohibition but an implementation of the separation of powers, as general safeguard of the judicial function. more supply trial by legislature. the legislative branch is not suited as political independent judges and juries. when the senate undertakes an impeachment of a private citizen, which is the case here supported of the facts of the chief justice and mr. trump is not the president, they're acting as a judge and jury, not a later body. this is what the attainder provision is meant to include. the punishment the house managers seek to fet here is like a banishment that is subject to the constitutional prohibition against the passage of bills of attainder. under which general designation bills of pains and penalties are included. the supreme court three times has struck down provisions that precluded support of the south, support of communism as being in violation of this prohibition. thus impeachment 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 they rushed through the articles of impeachment in less than 48 hours. acting hastily to appease the popular clamor of their political base. the very kind of concern expressed by mr. hamilton in federalist 65. moreover, as chief justice marshall warned in fletcher versus peck, it's not to be disguised that the framers viewed with some apprehension that the people in the united states in adopting that instrument have manifest add determination to shield themselves and their property of the strong passions to which men and women are exposed. the restrictions on the legislative power of the states are obviously founded in this sentiment. 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 attainder in this form. the power of legislature over the lives and fortunes is susstained. so now let's go 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's several passages of the united states constitution that relate to federal impeachment process. let's go to the reading of the text now. it 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 begins with a text. the constitution was written to be understood by the voters. its words and phrases were used in the normal and ordinary as distinguished from technical meaning. we must enforce plain language according to its terms. if the president is impeached, the unambiguous text of the constitution demands that the chief justice of the united states shall decide as we discussed. the chief justice is disinterested and nonpartisan. in this case, the chief justice clearly is not presiding. and the conflict of interest wouldn't necessarily just arise as a substitutes for the vice president. it's the appearance of a conflict of interest and the rejudgment that we've discussed. in this case as we say, the chief justice is clearly not presiding. the senate president pro tem is presiding. it appears that in the leader's view joined by other senators this is permitted by the constitution because of the subject of the trial is a nonpresident. as such, it's conceded as it must be for constitutional purposes of the trial, the accused is a nonpresident. 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 and vice president and all civil officers of the united states shall be removed from office, conviction of tre son, bribery or other high crimes and misdemeanors. from which office shall a nonpresident be removed if convicted? a nonpresident doesn't hold an office, therefore cannot be impeached from this clause, which calls for remove raleigh of the person. the house managers contend that the fact that the chief justice does not provide does not conduct the validity of the trial. they prompted multiple senators to declare the entire proceedings suspects. a single paragraph that the house managers do devote to the issue is unpersuasive. the house manager's position ignored cannons of interpretation. its well established 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 the most vigorous when a term is repeated in a given sentence. additionally, in one instance, there's been one established canon that similar language be acourt add consistent meaning. this is a lot to listen to at once a lot of words. but words are what make our constitution is quite frankly and the interpretation of that constitution as you well know a product of words. if the text -- the president of the united states and the constitutional provision requiring the chief justice to preside can refer only to the sitting presidents, the text ual identification of the president excludes anyone other than the sitting president. in full that sentence provides that "the president, vice president and all civil officers of the united states shall be removed from office on impeachment for an conviction of treason, bribery or high crimes and misdemeanors, this is a substancive praise and has a clear jurisdictional limitation. the house managers know this limitation and understand it's as well. it's refers to the president of the united states in this constitution. only a sitting president may be impeached, convicted and removed upon a trial in the senate. the president and article 2 section 4 and the president in article 1 section 3 identifies the same person. if the accused is not the president in 1, he is not the president in the other. no sound textual interpretation reading. it's a normal rule of statutory construction that identical words used in same parts of the same act are intended to have the same meeting. inwillingly as it may be, senate democrats have already taken their position on this matser. 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 untilty. can't be removed. house managers contend the senate has jurisdiction over the impeachment because despite the fact that he's no longer the president, the conduct the former president is charged with while still in office, that is not in any way alter the constitutions clear text you'll identification of the president. the house managers justified their strained argument by noting the constitution's impeachment provisions are properly understood by ref for instance to this overarching constitutional plan. but with that very justification in mind, their argument fails again. in an impeachment, it is the accused office that permitses the impeachment. ceasing to hold that office terminates the possibility and purpose of impeachment. private persons may not be impeached in america. so they ask you to look back at the british mom. the constitution as i say does not make private citizens subject to impeachment. the founders rejected the british model that allowed parliament to impeach anyone except for the king. so they limited impeachment to certain public officials including presidents in our country. next on the textual front. the only primary remedy is removal. article 2, section 4. when a civil officer is impeach and convicted for high crimes and misdemeanors, they shall be removed. it's undeniable in this instance removal is moot in every possible regard. removal is a factual and legal impossibility. the articles of impeachment itself read it in the where for clause calls for removal. that's why impeachment proceedings are different from ordinary trials. a person convicted of public crimes while he or she was in office may be punished even though that no longer hold that office. not so with impeachment. in a senate impeachment trial, conviction means and requires move value. conviction without removal. 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 at a court of impeachment is reserved for the president of the united states. not a private citizen. just as clear, the judgment required upon conviction is removal from office and a former president can no longer removed from office. the purpose text and structure of the constitution impeachment clauses confirm this unto youive and common sense understanding so wrote judge michael luddig for the fourth 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 officer subject to removal. state versus hill from nebraska and smith versus brantley 1981 decision from the florida supreme court. this is the first time that the united states senate has ever been asked to apply the constitution's textual identification of the president in impeachment proceedings to anyone other than the sitting president of the united states. of course from a textual approach is the president, not a president. there can be only one president. the incumbent at a time. the judge relies on this textual reading for his conclusion that a former president cannot be impeached or convicted. consider the alternative. if mr. trump can be impeach as a president, why is he not president under the commander-in-chief clause, for example? there are joined by professor alan dershowitz and richard enstein in their focus and conclusion. they point out the dangers that deviates from a focus on the text. if there's no temporal limitation, that's what they have suggested to you. remember, you can go back in time and impeach my civil officer that ever served for any that occurred during the course of their service. with the house manager position, it includes all former officers and judges and perhaps the impeachment of jimmy carter for his handling of the iran hostage schedule. that flows logically without hesitation. further they ask, why not the other terms? when they say they ask, the experts that opined on this. why not the broad reading of other terms like high crimes and misdemeanors? however broadly construed, they're intended to be the only conduct as impeachable. they conclude writing in a next textual impeachment power would make the president independent of congress a central goal of the founding fathers. the authors argue for textual analysis over nontextual analysis -- over nontextual reliable of history. it would expressly permit conduct to the expressed language leading to inentended results. i spoke to judge ken starr at some length about this. this textual approach is something that he feelings very strongly about. i also happen to be friendly with chuck cooper a fine person. also happens to be a personhas strong annie -- animus against president trump. i'm sure our friend from alabama -- no we discussed the risks to the institution of the presidency and to any and all past officers are limited by one's imagination. the weakness of the house manager's case is further demonstrated by their reliance on the unproven assertion that if president trump is not impeached, few cher officers that are impeached will be removed by resigning before impeachment or senate trial. for example, they contend citing various law professors that any official that detrayed the public trust and impeach could avoid accountability by resigning one minute before the senate's final conviction vote. this argument is a complete kennard. the constitution expressly provides in article 1, section through, clause 7 that a convicted party following impeachment shall nevertheless be liable and subject to indictment, trial, judgment and punishment after removal clearly a former civil officer that is not impeached is subject to the same. we have a judicial process in this country. we have an investigative process in this country to which no former office holder is immune. that's the process that should run its course. s that the pro sill that the bill of attainder is appropriate for prosecution and punishment. we're missing it by two articles here. the article 3 courts provide. they provide that kind of appropriate adjudication. that's accountability. there's appropriate mechanisms the place for accountability, not through the legislature, which does not and cannot office the safe guards 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 president but reads the president in the other one to include the sitting president. also it fails because the former president did not resign even amid calls that he do so. the senate need not decide whether they possess the power or jurisdiction to convict a former president or how to effectuate justice in such a case. that's not this case. the plain meaning of the constitution's text shall govern whether a united states senate is vested by the constitution to convict a private citizen. it is not. the house managers pause it in the trial men random that the only remedy is a nullity and is inappropriate because the second remedy that the senate is not required to consider disqualification from future office could be applied to a former president. the managers contend articles 2, section 4, states a straightforward rule. when civil officer is impeach and convicted for high crimes and misdemeanors, they shall be removed. absolutely nothing about this rule implies or requires that former officials that can stale face disqualification are immune from impeachment and conviction. that's what they say. they told you that today. so the argument goes, a president no longer holding office does not moot the remedies by affording impeachment. this flies in the face of the plane meaning of the text and the cannons of statutory interpretation. the managers choose to ignore the text. even in the passage that the manager's cite, the world shall, does to put it mildly imply a requirement. imperative such that an impeachment which removal would be impossible is invalid. shall means shall. the supreme court has made clean that when a statute uses shall, congress has a mandatory duty on the command. like shall 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. this is another one. judge starr is big on many of the textual scholars have written about. managers ignore this language in article 1, section 3, clause 7 which statements that judgment in cases of each shall not extend further from removal of office, and disqualification to hold and enjoy any office of honor, truth or profit under the united states. ordinarily as an every day english use of the conjunctive and in a list means that all of the listed requirements must be satisfied while use of the or means one of the listed needs to be satisfied. judge starr understands the comma to provide further support for the reading. the judge argued the constitution links the impeachment remedy of disqualification from future office. the former remedy does not apply in situations with the latter is unavailable. conviction and removal. if removal is no longer available, northeaster is conviction. justice story and the same on the constitution where in justice story analyzes impeachment is ina applicable for those that are no longer in office. justice story noted that he's not coming to a firm pause on this. this is his belief and his thought process. there's much more on the remark that impeachment is a proceeding purely of a political nature. it's not so much designed to punish an offender but secure the state against gross official processes. i divests him of his official capacity. professor phillip bob bit. this is insulting. professor phillip bobbit is from columbia university who along with professor charles black wrote the handbook on impeachment used for many years. he's an expert on impeachment. he's written there's little discussion in the historical question. professor bobbit which has a rich history in the democratic party, l.b.j., also asserted the following as recently january 27,2021. arguing against holding this trial. he said "there's no authority granted to congress to impeach and convict persons that are not civil officers of the united states. limiting congress to the specified powers is a crucial element and the central idea of the united states constitution putting the state under law. professor bobbit and university law professor richard danzig has remarked the encroachments of the executives and other safeguards put aside because of the need to protect the public from further abuse of office. similarly yesterday professor eugene wrote the constitution provides the impeachment process to be used to remove all civil officers of the united states. that is people holding a government position. yet in the case of mr. trump, the house is reading the constitution as if i'd say the process applies to all civil officers of the united states and people that are not civil officers but once were. that's not what it says. we've been told by the house managers and miscitations in our brief. this is substantive misrepresentation. it reflects a different view of democracy. a fear of democracy. they wrote on page 37 of the brief that the framers -- paraphrasing -- the framers would not hesitate to convict on these facts. their world view was shaped by classical history and arrived resistance and resolution. they were aware of the danger for mobs for political game. they drafted the constitution to avoid such thuggery that they used for civil disorder by a dictator. the citation is 178. bernard balin, the origins of the american revolution. that's this book. professor balin 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 colonist view of democracy. they feared democracy. that's what they called thuggery. it's an elitist point of view. we don't fear democracy. we embrace it. in summing up, let's be crystal clear. the singular goal of the house managers and house leadership in pursuing the conviction of donald trump is to use the proceedings to disenfranchise 74 million americans with whom they disagree and to make sure no other american can cast a vole for donald trump. if they convince you to go forward, that this will be a shot across the bow of any other candidate for public office that would dare to take up a political message as the direction in which they wish to take our country. under our constitution, the body and the impeachment process must never be permitted to weaponized for partisan political purposes, this must be dismissed for lacks of jurisdiction for what is discussed here too and is in our brief. before we close, i want to leave you with two thoughts. one was expressed by abraham lincoln. he comes to mind because of the way our nation is divided. he had a simply 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's right and part with him when he goes wrong. in both cases, you're right. in both cases you oppose the dangerous extremes and in both cases you stand on morale ground and hold the ship level and steady. you're national and nothing less than national. the seconds message from one of mr. lincoln's poets. the message from the other time of division is a call for hope and unity. it has special meaning today. he wrote, sail forth into the sea, oh ship through wind and wave. the trembly lip are not doubt or fear. sail forth oh trusting wife and faith from all adversity from the bosom of the sea. for gentleness of love and gust. in the wreck of noble lives something immortal still survives. each who make each mast, sail and rope and what forge would shape anger's home. fear not each sudden,sound and shock of the wave and knock the rock. 'tis by the flapping of the sail and not a rent made by the gale. in spite of rock, in spite of false lights on the shore, sail on, not fear to breath to sea our hearts, our hopes are all with thee. our hearts, our hopes, our prayers, our tears, our faith triumphant over our fears are all with thee, are all with thee. >> all right, you had two hours to listen to the argument on the part of the house impeachment managers to go ahead and impeach essentially a former president, and you've heard two hours of the making the argument that you can't do that, you shouldn't do that. has any mind been changed? that's the big question. here comes "the five." ♪ ♪ >> hello, everyone, i am dana perino along with jesse watters, greg gutfeld, katie pavlov chen juan williams. it's 5:00 in new york city and this is "the five." you are looking live at the senate floor right now, the second impeachment trial for now former president trump is underway and a vote is expected this hour on whether a trial is constitutional and if it will go forward. we will bring you that as soon as it happens. earlier today house impeachment managers arguing that former president trump incited an insurrection of the capital on january 6th. >> they want to call the

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