As much fun as it would be to watch Senators Rand Paul (R-KY) and Ted Cruz (R-TX) slap around Joe Biden and his son Snorty in an impeachment trial, that trial may not even happen. Half a dozen House Democrats have already jumped ship on impeachment; one, Rep. Jeff Van Drew (D-NY) has even switched parties to avoid the stink of impeachment in next year’s election.
But even more important is the fact that there is a valid constitutional argument that the Senate cannot hold this impeachment trial. The reason? The Articles of Impeachment drafted by Frodo Nadler and the House Judiciary Democrats are legally invalid.
Contrary to popular belief, the House cannot impeach a president for “anything it wants to.” Only one person in history has ever said that (President Gerald Ford) and he was wrong.
Aside from being false, impeachment Article I against President Trump is an invalid legal argument. That’s the “abuse of power” article that claims that Trump used his office to solicit an investigation of the Bidens, by withholding foreign aid from Ukraine. We know this is false due to the transcript of Trump’s call with the Ukraine president. But it’s also a ludicrously invalid legal argument to claim that withholding aid from Ukraine is a crime.
Imagine that Congress approves a billion dollars in foreign aid to another country. Pick any country. The president signs the bill approving the aid. The aid is intended to build orphanages, pay for food and economic development programs, transgender bathrooms or whatever. And then the leadership of that foreign country announces, “Woohoo! We get a billion dollars from those stupid sucker Americans! We’re spending it all on strippers and cocaine and throwing a party until the money runs out!”
Even though the money has been approved and signed into law and appropriated, we would have to be insane to still send that foreign aid to the corrupt foreign regime. It seems like some person – call me crazy, but perhaps someone with a role similar to a “chief executive” – should still have discretionary authority to say, “You know what? Nope.”
The point is that it is legally absurd to claim that a president does not have discretion to withhold foreign aid under any circumstance. Article I in the Trump impeachment is therefore invalid.
Article II is even worse. It states that Trump is guilty of “obstruction of Congress” because he told Executive branch agencies and employees to refuse to comply with subpoenas related to the Ukraine phone call.
This is another one of those constitutional contrary-to-popular-belief scenarios, but a president is immune from criminal indictment. Impeachment is the sole constitutional remedy for removing a president if he actually commits a crime. Subpoenas from Congress are an area where there has always been a legal back-and-forth over whether a subpoena is legitimate.
This is because Congress is not the prosecutorial branch of government. It’s the legislative branch, so any subpoena that it issues has to have a valid legislative purpose. If Democrats had any smarts, they would have announced that, “Well, gosh, all of a sudden, we’re going to conduct some oversight into the disbursement of aid to Ukraine for no particular reason. Oh, look here! In the midst of all of this responsible oversight of foreign aid that we do all the time, we’ve discovered a potential crime by President Trump!” If they had done that originally, without mentioning the I-word, Article II would maybe have some validity to it.
Instead, from the moment that Americans found out that Trump even had a phone call with the Ukraine president, Democrats have been howling, “Hallelujah! We’ve finally got the SOB! It’s impeachment time! We’re saved!”
Because the Ukraine subpoenas had a prosecutorial bent from the get-go, and served no legislative purpose, the subpoenas were invalid. Therefore, Article II is invalid.
The constitutional question now becomes whether the Senate can even hold a trial based on the invalid nature of these shoddy, childish and poorly-thought-out Articles of Impeachment. As Alexander Hamilton wrote in the Federalist Papers, “No legislative act… contrary to the constitution, can be valid.” If the Articles of Impeachment are unconstitutional to begin with, it doesn’t matter if the House passes them. Legally, the Senate can’t hold a trial on them.
Supreme Court Chief Justice John Roberts is supposed to oversee an impeachment trial in the Senate if we get that far. The question is whether he will throw the case out entirely, based on the invalid nature of the impeachment articles. I guess we’re about to find out. And you won’t see it on the news, but that’s a very real discussion that’s taking place in DC right now.