WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  December 17, 2019

Topic category:  Constitution/Constitutional Crises

Would Articles of Impeachment Against President Trump Be Fit to Be Tried by the Senate?

Even if President Trump chooses not to move to dismiss the articles of impeachment, whether for legal, political or personal reasons, Chief Justice John Roberts should act sua sponte as an impeachment trial is about to begin and ask the Senate to vote on whether there is a legal and factual basis to proceed to trial on either article.

It appears that two articles of impeachment against President Trump are about to be approved by the House of Representatives as part of the Democrats' 2020 election strategy.

If not, House Speaker Nancy Pelosi no longer can count votes and needs to retire.

Impeachment is the equivalent of indictment, and not all indictments are worthy of a trial, much less conviction.

The Easley Law firm posted the following helpful summary on its website (www.easleyfirm.com/library/6-grounds-to-get-the-charges-against-you-dismissed.cfm):

Common Grounds to File a Motion to Dismiss Your Criminal Case

Whether you have any grounds to request that the charges against you be dismissed would depend on the facts of your case, how the police handled your arrest, and the evidence against you. Reasons you might want to bring this type of motion include:

The United States Senate needs to do its duty and determine whether any articles of impeachment are trial worthy.

When it comes to the two articles of impeachment about to be approved--abuse of power and obstruction of Congress--it appears to me that dismissal for at least no probable cause, lack of evidence and missing witnesses would be in order as to one or both articles.

If the Senate proceeds to trial without determining that dismissal is not appropriate, that would be a travesty of justice and a terrible precedent.

At the least, the obstruction of Congress article should be dismissed.

Section 4 of Article Two of the United States Constitution states: "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."

A President of the United States does not obstruct Congress within the meaning of Section 4 by asserting executive privilege, which is a key part of the Constitution's system of checks and balances.

It is for Congress to go to the federal courts to determine finally that executive privilege is not applicable in particular circumstances.

The House of Representatives appears to be choosing to impeach instead of to pursue its option to challenge the President's executive privilege claim in court.

That would make impeachment for alleged obstruction of Congress unconstitutional, even if obstruction of Congress ultimately is determined to fall under "other high Crimes and Misdemeanors" (which is an open question).

In proceeding to trial on alleged obstruction of Congress, the Senate would be deciding that the obstruction of Congress alleged would so fall if proven at trial and that would be a bad precedent.

Likewise as to alleged abuse of power, the Senate would be so deciding implicitly and setting a dangerous precedent by doing so.

President Trump should move to dismiss, for the sake of the Presidency, and demand that the Senate vote on whether there is a sufficient basis to proceed to trial on any article of impeachment.

Even if President Trump chooses not to move to dismiss the articles of impeachment, whether for legal, political or personal reasons, Chief Justice John Roberts should act sua sponte as an impeachment trial is about to begin and ask the Senate to vote on whether there is a legal and factual basis to proceed to trial on either article.

A two-thirds vote would be required for conviction on any article of impeachment.

A simple majority in the House of Representatives suffices for impeachment.

But it does not follow that the Senate will agree that there was probable cause for impeachment and that a House investigation that ends in impeachment is not fatally tainted.

Fifty-one votes surely would be enough for dismissal.

Perhaps thirty-four should be enough.

After all, thirty-four votes would suffice for acquittal and a trial would be a waste of time and money (including taxpayer money).

Should the show really continue to go on?

I doubt it.

The time of Congress should be better spent and the harassment of President Trump should end so that he can do more for the United States of America and the World, as every president should.

Let's have the Senate Judiciary Committee do the additional investigating that may be in order instead. 

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.

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