Trump Seeks Dismissal; It Could Happen; Chief Justice Could Grant Motion to Dismiss Impeachment Process on Several Grounds
WASHINGTON, D.C. (January 13, 2020) – President Donald Trump, in an apparent reversal of his earlier position which had called for a lengthy trial of the articles of impeachment – including the calling of witnesses – is now suggesting that the Senate should simply dismiss the impeachment case against him to “avoid giving credence to a trial” over what he calls a “hoax.”
While some are suggesting that such a dismissal at the very beginning of the proceeding is unlikely, especially in light of earlier comments by Senate Majority Leader Mitch McConnell, there are some ways is could occur, and some reasons to suggest that it just might, argues public interest law professor John Banzhaf, who played a role in forcing former president Richard Nixon from office, and successfully sued former vice president Spiro Agnew.
Impeachment process and the Senate
One way in which this could occur is if a motion is made at the beginning of the trial to the presiding Chief Justice to dismiss the proceedings because the articles of impeachment are arguably unconstitutional; a motion similar to those made in conventional criminal trials to dismiss because of a legally defective indictment. Such a motion could be based upon any one or more of several arguments.
First, it could be argued that since the Constitution provides for impeachment only if there has been "Treason, Bribery, or other high Crimes and Misdemeanors," and because the articles of indictment do not include any alleged crime, they cannot support a trial for removal from office.
Although some have argued that the constitutional phrase is not limited to actual statutory crimes, many have said on the contrary that while the crimes with which a president is charged may have somewhat different criminal standards, articles of impeachment must include an allegation of at least one crime, expressly or by implication, although other non-criminal charges may also then be included.
Second, many have argued that the President has been denied due process. The Fifth Amendment mandates that "No person shall ... be deprived of life, liberty, or property, without due process of law."
While the various procedural protections required by this amendment have been held not to apply when a person is simply charged with wrongdoing - e.g., a person suspected of a crime has no due process right to appear or even argue before a grand jury, call or cross examine witnesses, etc. - others have suggested that the requirement of due process applies to the entire impeachment process, and that the President has been denied important procedural protections (due process rights) in the House proceeding for many reasons.
Insufficient evidence for impeachment process?
Third, many have argued that there was insufficient evidence to even support a finding of reasonable suspicion, much less one of probable cause; the standard generally applied to grand juries.
In other words, if an indictment by a grand jury is analogous to the House's adoption of articles of impeachment, the House, like a grand jury, is only required to find that there is enough evidence against him - and without looking at the other side - to subject him to a trial proceeding to determine guilt.
Here it is argued that the evidence presented to the House does not even meet this minimal standard. For example, constitutional scholar Jonathan Turley testified in the House proceeding that the evidence to date was too weak: only "wafer thin." Others have suggested that the Democrats' repeated calling for witnesses by the Senate shows that there was insufficient evidence now to impeach the President.
If the presiding Chief Justice agrees with any one or more of these arguments, he presumably can, like a judge in a criminal case can refuse to proceed if the indictment is illegal or otherwise improper, dismiss the proceeding at the very beginning. Indeed, he might even cite Alexander Hamilton.
Impeachment process and the law
Hamilton wrote in Federalist No. 78: "There is no position which depends on CLEARER PRINCIPLES, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, IS VOID. No legislative act, therefore, contrary to the Constitution, can BE VALID." [emphasis added] So, since a Senate trial arguably cannot proceed based upon a document which is void and not valid, an argument can be made to Roberts that the proceeding must be adjourned as void ab initio ["to be treated as invalid from the outset"] without any trial.
While a ruling dismissing the proceeding can be appealed to the Senators, it is possible that such a ruling might not be overturned.
Putting aside the legal strengths and weaknesses of such an argument, it might be upheld because it would produce a result which might greatly please both the President and most Republican senators, since Trump could claim complete vindication and then harangue the Democrats for trying to use an unconstitutional tactic to remove him from office.
It would also be consistent with the President's new call for dismissal, and McConnell's pledge to work "in total coordination with the White House counsel's office and the people who are representing the president." Indeed, Republican Senator Rick Scott has already announced that he would vote for dismissal.
Chief Justice in spotlight
Some Democratic senators might also be unwilling to overrule the Chief Justice because his dismissal would avoid losing a trial in the Senate which could otherwise be seen as vindicating the President; avoid having witnesses - such as Joe and Hunter Biden and others - which might prove embarrassing and time consuming, and not prevent senators who are running for president and attacking Trump from continuing their campaigns while a Senate trial drags on.
If a motion to dismiss is not granted by the Chief Justice, his initial ruling could likewise be overturned by the senators, with the same considerations possibly influencing their votes, suggests Banzhaf.
Since so many aspects of this entire impeachment process, like so much of Trump's presidency, has already proven to be so unusual and unprecedented - e.g., the House's refused to promptly deliver the articles of impeachment to the Senate - it might be important to consider any plausible, even though somewhat unlikely, scenarios which might just otherwise surprise us and occur, and for those who want a trial to prepare arguments to counter any possible motions to dismiss, suggests Banzhaf.