The Senate’s Cadaver Synod: The Trial of Citizen Trump would Raise Serious Constitutional Questions

jonathanturley jonathanturley

 

Below is my column in USA Today on the upcoming Senate trial of President Donald Trump. The Hill recently my second column on why the best defense of Trump could be no defense — to skip the Senate trial and force a threshold vote on the constitutionality of the trial of an ex-president.

Here is my column:

With the second impeachment of President Donald Trump, the Congress is set for one of the most bizarre moments in constitutional history: the removal of someone who has already left office. The retroactive removal would be a testament to the timeliness of rage. While it is not without precedent, it is without logic.

The planned impeachment trial of Donald Trump after he leaves office would be our own version of the Cadaver Synod.  In 897, Pope Stephen VI and his supporters continued to seethe over the action of Pope Formosus, who not only died in 896 but was followed by another pope, Boniface VI.  After the brief rule of Boniface VI, Pope Stephen set about to even some scores. He pulled Formosus out of his tomb, propped him up in court, and convicted him of variety of violations of canon law. Formosus was then taken out, three fingers cut off, and eventually thrown in the Tiber River.

While some may be looking longingly at the Potomac for their own Cadaver Synod, Speaker Nancy Pelosi and other Democrats have stated that their primary interest is in the possible disqualification of Trump from holding future federal office. Disqualification however is an optional penalty that follows a conviction and removal. It may be added to the primary purpose of removal referenced in the Constitution. The Trump trial would convert this supplemental punishment into the primary purpose of the trial.

This did happen before but that precedent is only slightly better than the Cadaver Synod. That case involved William Belknap who served as Secretary of War to President Ulysses S. Grant. Belknap resigned after allegations of corruption — just shortly before a House vote of impeachment. The Senate held a trial but acquitted him. Twenty nine of 66 voting senators disagreed in a threshold motion that Belknap was  “amenable to trial by impeachment . . . notwithstanding his resignation.”

In fairness to the Democrats, I have long rejected the argument that there comes a point when it is too late to impeach a president while he is in office. As I said in both the Clinton and Trump impeachment hearings, the House is under a duty to impeach if it believes that a president has committed a high crime and misdemeanor. If that occurred on the last day of a term, it would still be warranted.

My objection to this second impeachment was that it proceeded without any deliberation of the traditional impeachment process. It was a snap impeachment, which is to the Constitution what Snapchat is to conversations. It reduces the process to a raw, brief and partisan vote. This could have been avoided. A hearing could have been held in a day to allow the language of the article to be amended and the implications of the impeachment considered. It would also have allowed for a formal demand for a response from the president.

Instead, the impeachment was pushed through on a partisan muscle vote with only ten Republicans supporting the single article. It was an ironic moment. In the last Trump impeachment, I chastised the Democrats for pushing through an impeachment on the slimmest record and the shortest time frame of any presidential impeachment. They insisted that there was no time for witnesses before the House Judiciary hearing, but later waited weeks to submit the articles to the Senate. Now they have outdone that record with an impeachment with no traditional record in a matter of a couple of days. The Senate will not sit until January 19th and any trial would likely occur after January 20th.

I have long wrestled with the notion of a retroactive impeachment trial. I can see the value of establishing that a president was not just accused but convicted of unconstitutional acts. There is also the value of disqualification of such an individual from future office. However, what was an intriguing academic puzzle is now a pressing constitutional concern.

The impeachment trial of a private citizen raises a host of constitutional and practical problems. For example, a president can rely on publicly-funded lawyers like the White House Counsel and can assert presidential privileges. After leaving office, an ex-president would not only pay for his own defense, but he will lose the ability to make privilege determinations. Indeed, many such assertions would be subject to the review of his successor, Joe Biden. It would be like Pope Stephen making determinations on critical evidence of Pope Formosus after pulling him out of the crypt.

The main issue however would be whether this is really an impeachment trial, as opposed to some curious constitutional post-mortem on a passed presidency. That question could face Supreme Court Chief Justice John Roberts if he has summoned for this role. A chief justice does not simply show up at anything deemed an impeachment trial. He must make an independent judgment over his carrying out a constitutional function.  Even if he rules that this is a valid trial, that ruling could be rejected by the Senate in a motion to dismiss the article. In the Clinton impeachment, Democrats demanded such a threshold vote before a trial. Of course, since there is no president to try for impeachment, the Senate may not even ask Roberts to preside — a telling departure that only undermines the trial as a whole.

This impeachment should end with the Trump administration. I do not fault those who view the president’s conduct as impeachable. The speech was reckless and wrong. My primary objection was to the use of a snap impeachment and the language of the article of impeachment. That is now part of Trump’s presidential legacy. The question is now what will be the troubling constitutional legacy left by the Senate in the trial of an ex-president.

In my view, a retroactive removal vote would combine with the use of a snap impeachment to fundamentally altering the role of impeachment in the United States. It would take a rush to judgment and turn it into a parade of constitutional horribles. Any party could retroactively impeach or remove a former president for the purpose of disqualifying him from office. Thus, if a party feared a one-term president’s possible run, they could hold use impeachment to eliminate the political threat. With the snap impeachment, it would be worse than creating a type of “no confidence vote” under our Constitution. After a non confidence vote in the United Kingdom, a former prime minister can still run again for office.

A conviction would also not bring the closure as many may hope. Such disqualification would be one of the few impeachment issues that could be challenged in court. Trump would have standing to sue for his right to run again and he could well win. He would then be more popular than ever with many citizens eager to defy the Washington establishment. There is another path. The Senate could end the trial with a threshold vote and let history and the voters be the final judge of Donald J. Trump.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

Please follow and like us:

41 thoughts on “The Senate’s Cadaver Synod: The Trial of Citizen Trump would Raise Serious Constitutional Questions”

        1. And I stand with you and the American people, Will. The Republic must be restored. It must happen. And the sooner the better. Today seems like a great day to start!

          moderated
      1. I would never, never trust somebody who literally worshipped the Zionists.Trump has been bailed out of financial trouble by the Russian jew mafia frequently. He owes them. He laundered money for them over and over. Trump is a skunk and he deliberately played us.Now what do we have for a leader? People make voluminous excuses for Trump. Trump draining the swamp? Are you kidding? The ultimate debauchery is when Bibi threw Trump aside and sucked up to Biden, a dyed in the wool Zionist. We got screwed by Trump for 4 years. Trump is nobody I care to see/hear anymore of. He’s one of them and was from start. I wish he’d choke on his kippa.

        Here’s a heads up for the future. Stay away from the Israel lovers when you look for politicians. They are poison.

        moderated
  1. Very few know what will happen today. Most of us on this blog are hoping and praying for the best outcome for We the People. Those who drank that large glass of Kool-Aide can look forward to endless vaccinations, tests and mask wearing. They have surrendered their freedom without a whimper of protest. Those who pushed the glass aside and thought for themselves may have to make a decision very soon. Will we sit back and subject ourselves to the same Draconian measures or will we continue to fight for the human rights with which we are all born?
    I know my choice.
    I hope you make the same.
    See ya in the trenches….one way or another.

    moderated
  2. Tomorrow [Wednesday] we will witness history. Too bad but we will see lifelong criminals gain power. The same thing happened in Germany in 1933 and in many other places throughout time. Its not pleasant that these types live here and that millions of people follow them. Can millions of people be wrong….YES.

    If we do not learn from history, we are doomed to relive it…George Santayana

    Attachment

    moderated
      1. OK Jim…..I am interested in whatever happens. If its the military…so be it. Stranger things have happened in the past 5,000 years of recorded human history. Thanks for your reply to my comment.

        moderated
      2. I don’t always agree with you Jim though it’s quite often. My gut tells me the military transitional government (MTG) is the only logical move for this nation to return to “under God”. Trumpster and the First Gal ride off into the sunset. The vacuum created by the whipping boy’s departure will create a sucking sound that transforms into a black hole devouring the collectivists and their water boys in the mind control ministry (MCM). It’s a brilliant chess move.

        I think most of the 85 million that voted Trump want the military to take over because the corruption is the real virus infecting this country. My estimate on legit Biden votes? I’m going with a generous 25 million. In my state of Colorado, I want a recount on the Corey Gardner vs. John Hick-n-Whopper US Senate Race. Corey Gardner was beloved by many. Hick-n-Whopper was under a scandal for using the 911 fund on his own defense against jet-travel bribery. Sound familiar? Corey was way too soft on the Whopper and he lost, but did he? Dominion is based in Denver. More people voted then the official list of eligible voters.

        I never asked for or wanted a mail in ballot. Because i always vote in person. But I received one anyway. I only used it as a work sheet for the complicated ballot questions. I forgot it at the polling station and wanted to go back for it. But decided to vote any way. It made me take a second look at the ballot questions. I don’t think I changed anything, but I felt involved in our future as someone informed. To make the right call.

        I disagree with the idea Colorado turned blue legit-wise. Only the population centers vote Collectivist. Rural areas are blood red Republicans. If you put it into perspective with an electoral map, the demolition party holds no broad based popularity. That shows the brilliance of our founding dads. They saw the danger of population alone dominating the narrative.

        That nervous cackle from Kum-all-over-hur combined with Hidin’ Biden’s latest incoherent gibberish moment (IGM). It was so embarrassing, America would be the laughing stock of Earth, should they ever effectively assume power. Trump leaving office until after the Tribunals. It makes sense. The soul-less beings like Beligosi Pelosi, Huck Clueless… they can’t be tried and found guilty because they are in the above-the-law class. You know the type, untouchable by the courts. Loosing an election? Isn’t it obvious their elections are rigged? Their policies are so patently unpopular and that’s why their platform is nebulous to the nines. It’s the main reason they don’t let Biden say much, he forgets when to lie. When he is the most coherent, he tells the truth. Everything else turns to Gibberish. The most truthful utterance by Hiden’Biden? ‘he put together the most comprehensive voter fraud system ever’. That was a senior moment of forgetting when to lie or was it? Remember the evil code of the elites? They have to come out and say what their intensions are. If we don’t stop them, it’s tacit consent.

        moderated
        1. There is no doubt the utterance from Biden was part of their usual ritual. He’s not coherent enough to understand. The strings are pulled and he speaks..there is no thought process.

          moderated
  3. Just a quick question to all the patriots here who are waiting patiently.
    Do you think those looking to break the ties with a tyrannical king in 1776 waited for permission to fight their freedom?
    I doubt it.
    Thank gawd they did not.

    moderated
  4. Reichswehr soldiers swear the Hitler oath in 1934, with hands raised in the traditional schwurhand gesture.

    We’ve been down this ugly road before.

    Attachment

    moderated
  5. All this static in the attic will soon be moot. The fences around the Capitol and the White House could just as well be there to keep people in, not marauders out. There’s only one reason 25 or 35,000 troops are there. Trump ordered them there.

    moderated
    1. 200,000 flags to represent the Americans who cannot attend this “inauguration”. A sickening display. WHY does this resemble a GRAVEYARD with a large phallic symbol in the background. …or is it just my imagination? This is a degradation, not a celebration.

      Attachment

      moderated
      1. Hey Will, Jim

        Listen to what the leadership of the Nat’l Guard have to say. It sounds nothing like an inauguration security mission to me. It sound like a horse of a different color. Please tell me what you’ll think. It’s almost what the commanders don’t say as much as what they tell you. These guys sound jazzed to be in DC, it sounds nothing like a ceremony security detail to me. There mission goes well beyond a day on the calendar

        https://www.youtube.com/watch?v=HAgxu1oh45o&feature=emb_logo

        moderated
          1. Jim … holy snikees. Those aren’t cruise ships, ain’t no Carnival Cruise, ‘neither. This flotilla is huge news!!!!!!!!!!!!!!!!!! Good Catch Professor!

          2. Did you’ll catch the President’s farewell address? Not once did he mention Biden. The way he said the best what year to come… it did not sound like a pie in the sky claim. Sounded like sure fired fact like the sunrise. Tell me why you think of the 20 minute farewell

            https://www.youtube.com/watch?v=6h5_d3DUdR4

  6. Issued by Trump today: (must say, I don’t get it..anyone???)

    Issued on: January 18, 2021
    Share:

    By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

    Section 1. Purpose. Under the Constitution and Federal law, our Government vests in judges, prosecutors, and law enforcement officers the power to make decisions of enormous consequence. Because of the importance of their work, these public servants face unique risks to their safety and the safety of their families. Some who face or have received an adverse judicial decision have sought to intimidate or punish judges and prosecutors with threats of harm. Moreover, judges, prosecutors, and law enforcement officers are symbols within our communities of law and order and may be targeted for that reason alone. And at times, family members of public servants have become victims. Last year, a former litigant before a Federal judge in New Jersey tragically murdered the judge’s 20-year-old son and critically wounded her husband. Judges, prosecutors, and law enforcement officers’ resiliency in the face of the danger they regularly face is an inspiration for all of us in public service.

    Judges, prosecutors, and law enforcement officers should not have to choose between public service and subjecting themselves and their families to danger. My Administration has no higher priorities than preserving the rule of law in our country and protecting the men and women who serve under its flag. Accordingly, I am ordering enhanced protections for judges, prosecutors, and law enforcement officers. Federal law already allows Federal and State law enforcement officers to protect themselves by carrying a concealed firearm, but the Federal Government can do more to cut the red tape that Federal law enforcement officers must navigate to exercise their right. The current threat to Federal prosecutors also demands an expansion of their ability to carry a concealed firearm, as allowed under the Department of Justice’s existing authorities. Finally, the Congress should act expeditiously to adopt legislation extending the right to carry a concealed firearm to Federal judges and pass other measures that will expand our capacity to combat threats of violence against judges, prosecutors, and law enforcement officers.

    Sec. 2. Removing Obstacles to Federal Law Enforcement Officers Qualifying For Concealed Carry Under the Law Enforcement Officers Safety Act of 2004. (a) It shall be the policy of the United States to remove any undue obstacle preventing current or retired Federal law enforcement officers from carrying a concealed firearm as allowed under the Law Enforcement Officers Safety Act of 2004, as amended (18 U.S.C. 926B, 926C) (LEOSA).

    (b) The heads of all executive departments and agencies (agencies) that employ or have employed qualified law enforcement officers or qualified retired law enforcement officers, as those terms are defined in the LEOSA, shall act expeditiously to implement the policy set by subsection (a) of this section.

    (c) The heads of all agencies that employ or have employed qualified law enforcement officers or qualified retired law enforcement officers, as those terms are defined in the LEOSA, shall submit a report to the President, through the Assistant to the President for Domestic Policy, within 30 days of the date of this order, reporting on the implementation of this order and analyzing qualified persons’ ability to carry a concealed firearm under the LEOSA.

    (d) The report required by subsection (c) of this section shall:

    (i) identify any obstacles that the agency’s qualified law enforcement officers or qualified retired law enforcement officers presently face in carrying a concealed firearm under the LEOSA;

    (ii) identify any categories of the agency’s qualified law enforcement officers or qualified retired law enforcement officers who are presently unable to carry a concealed firearm under the LEOSA;

    (iii) identify the steps the agency has taken to implement the policy set by subsection (a) of this section; and

    (iv) identify the steps the agency plans to take in the future to implement the policy set by subsection (a) and explain why it was not possible to take these steps before the report was submitted.

    Sec. 3. Authorizing Concealed Carry By Federal Prosecutors. (a) Within 30 days of the date of this order, the Attorney General shall propose a regulation revising section 0.112 of title 28, Code of Federal Regulations, to provide that the special deputation as a Deputy United States Marshal shall be granted upon request to any Federal prosecutor when the Federal prosecutor or his or her family members face risk of harm as a result of the Federal prosecutor’s government service and as appropriate.

    (b) The regulation proposed pursuant to this section shall:

    (i) include with the special deputation the power to possess and carry firearms but not include law enforcement powers such as the power to make arrests for violations of Federal law and the court-related duties of United States Marshals; and

    (ii) require appropriate training in firearm safety and use as a condition to any special deputation.

    (c) Within 30 days of the date of this order, the Attorney General shall revise other Department policies to permit special deputation consistent with subsections (a) and (b) of this section to the extent consistent with applicable law.

    Sec. 4. Expanding the Federal Government’s Protection of Judges, Prosecutors, and Law Enforcement Officers. (a) The Attorney General shall direct the Director of the Marshals Service to prioritize the protection of Federal judges and Federal prosecutors.

    (b) The Attorney General shall prioritize the investigation and prosecution of Federal crimes involving actual or threatened violence against judges, prosecutors, or law enforcement officers or their family members, if the family member was targeted because of that person’s relation to a judge, prosecutor, or law enforcement officer.

    (c) The Attorney General and Secretary of Homeland Security shall coordinate a review within the executive branch to assess the feasibility, as appropriate and consistent with applicable law, of facilitating the removal of, or minimizing the availability of, personally identifiable information appearing in public sources of judges, prosecutors, and law enforcement officers employed by the Federal Government, and shall use the results of this review to inform such persons of related security vulnerabilities.

    (d) Within 30 days of the date of this order, the Attorney General shall assess the need to revise subsection 0.111(e) of title 28, Code of Federal Regulations, to protect Federal prosecutors. If any revision is needed, the Attorney General shall take immediate steps to issue a proposed rule that would amend section 0.111(e) accordingly.

    (e) The heads of all agencies shall examine the extent to which they collect personally identifiable information from judges, prosecutors, or law enforcement officers, and as appropriate and consistent with applicable law, allow such persons to provide a Post Office box address in lieu of home address information.

    Sec. 5. Proposing Legislation to Enhance the Protection of Judges, Prosecutors, and Law Enforcement Officers. (a) Within 30 days of the date of this order, the Attorney General shall develop and propose Federal legislation providing additional protection for judges, prosecutors, and law enforcement officers.

    (b) The proposed legislation described in subsection (a) of this section shall:

    (i) authorize current and former Federal judges and current and former Federal prosecutors to possess or carry firearms when they or their family members face risk of harm as a result of their Federal government service, irrespective of Federal, State, and local laws which may restrict the possession or carrying of firearms;

    (ii) promote the removal and minimization of personally identifiable information from public websites and records of current and former judges, prosecutors, and law enforcement officers, as appropriate and as allowed under the Constitution;

    (iii) expand the ability of judges, prosecutors, and law enforcement officers to use Post Office box addresses in lieu of home address information;

    (iv) authorize additional appropriations and authority for the Department of Homeland Security, Marshals Service, and Federal Bureau of Investigation, including appropriations to hire and train additional personnel and authority for agencies to respond to both civil unrest and threats to Federal courthouses;

    (v) increase penalties for threatened and actual violence against Federal judges, prosecutors, and law enforcement officers and their families, including providing that violence against a Federal judge, prosecutor, or law enforcement officer’s family member shall be punished as though the act was committed against the Federal judge, prosecutor, or law enforcement officer if the family member was targeted because of that person’s relation to a Federal judge, prosecutor, or law enforcement officer;

    (vi) prevent State and local governments from obstructing the ability of qualified law enforcement officers and qualified retired law enforcement officers, as those terms are defined by the LEOSA, from carrying a concealed firearm pursuant to the LEOSA, including by refusing to issue identification documents; and

    (vii) propose other amendments to strengthen the LEOSA, if appropriate.

    Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

    (i) the authority granted by law to an executive department or agency, or the head thereof; or

    (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

    (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

    (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

    DONALD J. TRUMP

    moderated
  7. Fulford presents some interesting scenarios AND the Rothschilds involvement.

    ……do I see some connection here with the Netherland’s government stepping down?
    …not sure….

    January 18, 2021
    The Timeline of The World’s Future Will Be Chosen This Week
    By Benjamin Fulford Weekly Reports

    Over the next week, one of several timelines will determine the future of humanity. One is the fraudulent installment of Joe Biden as President followed by the U.S. surrender to Communist China. The second is the re-election of Donald Trump as president of the bankrupt U.S. Corporation, which may happen following an interim military government, publicly viewed election fraud investigation, and eventually what Trump described as “a smooth transition” to the new Republic. This could involve an escalating trade and cyberwar with China, to the detriment of Planet Earth.

    The third is to choose neither of the above, followed by an interregnum to replace a corrupted and bankrupt U.S. Corporation with something that actually represents the aspirations of the American people and of humanity as a whole. This third option would mean humanity would be free to decide its own future, instead of being herded by fear from one manufactured crisis to the next.

    The future of the United States will be in the hands of 20,000+ National Guard troops who have been deployed in Washington DC to oversee the inauguration of the next president of the U.S. Corporation. What these troops need to ask themselves is why are they guarding the so-called democratically elected government from the people.

    Instead of facing out to protect a corrupt government from the wrath of the people they supposedly represent, they need to realize instead they have the criminals surrounded. They have to round up the Deep State actors inside the beltway who were knowingly involved in the certification of a fraudulent election and committed treason.

    That means the American people need to work the phones, call friends and friends of friends, to contact the people deployed in DC, and remind them they swore to protect the constitution of the Republic of the United States of America against ALL enemies FOREIGN and DOMESTIC. On January 20th you will have them surrounded. Go round them up while you can.

    The troops stationed in DC may have been brainwashed into believing they are protecting a legitimately elected Joe Biden against “White Supremacist” Trump fanatics. That is why these troops need to ask themselves why they did not have to protect Barack Obama from these same “White Supremacists” when he was elected. The reason is that when Obama was elected they believed it was by a majority of the American people (and Dominion voting machine software). That is not the case with China Joe where additional fake ballot dumps in the middle of the night were required.

    The other thing the troops need to understand is that they are being lied to about why the presidential inauguration has to be held behind closed doors as a “virtual inauguration,” because of the “Covid-19” pandemic. The U.S. military has been provided with decisive proof that the entire manufactured crisis is the result of a long-planned, elaborate fraud. Additionally, there is also the possibility they may be aware that a transition is about to take place from the U.S. Corporation to the return of the Republic.

    Below is the scan of a patent for a “Covid-19” test that was registered by Richard A Rothschild in 2016, three years before the so-called pandemic broke out. Take a look at the third line from the bottom: “Last updated 22.06.2016.” Covid test patent

    We made a hard copy of this patent registration because we are sure once this is exposed they will break into the database and try to alter the dates.

    MI6 sent the following message to the Western-allied military command:

    “The public health emergency is either false or a cover for something far worse all of which appears to stack up having established the single fact that in 2016 the patent was filed in the Netherlands for the PCR test…[therefore] we urge the international armed forces and military intelligence capabilities to…

    The remainder of this article is only available to members of BenjaminFulford.net
    Please Log In or Register to create an account.

    Attachment

    moderated
  8. This week Donald Trump denounced the impeachment inquiry that has begun in Congress as a “kangaroo court”, and so not fit to judge what he also called his “great and unmatched wisdom”. But what have Australian marsupials got to do with American politics?

    The phrase “kangaroo court” originated in 19th-century America to describe any illegitimate court proceedings, as were often held by mutineers or prisoners. Some fanciful etymologies link it to the practice of “claim jumping” – the attempt to seize land already claimed by another – during the Gold Rush, or to dodgy practices by itinerant judges hopping from one jurisdiction to another.

    moderated
  9. It’s shameful that Turley continues with this false narrative about the Capitol protests. Trump’s speech was NOT incendiary, it finished a half–hour after the entering of the Capitol, and it was ANTIFA and the Bogoloo Bois and all the other losers that are supported by the elites to disrupt the country that caused the violence. Now it appears that Turley has joined the camp of those that lump protests of a massively fraudulent election that is being crushed as an “impeachable offense”. That’s why we do not live in a democracy anymore.

    Having said that, I agree that Trump shouldn’t even show up for the show trial. Or, if he does, he needs an ironclad agreement that he will not be limited in his defense. That way, he can bring in all the evidence of the election fraud. The Senate will never allow that., of course.

    moderated
  10. Any so-called Senate Court concerning private citizen Donald Trump after he leaves Office is nothing more than a hollow, meaningless Kangaroo Court. Of course this would demean and trivialize any ”verdict”. All of this nonsense would fit perfectly into Flag hugger Nancy Pelosi’s ice cream agenda.

    Attachment

    moderated

Leave a Reply