Thread by @JMHendersonSr

Random thoughts on the farcical #impeachment #show #trial.

Where's #ChiefJustice #Roberts?

To clarify, the Senate is NOT required to employ the services of the Chief Justice in the conduct of an impeachment trial except when the President is on trial.

Excepting presidential impeachments of #Clinton and #Trump, the modern Senate has impeached through a process in which the matter tried in committee, rather than before the whole Senate, and then and submitted to the Senate for ultimate judgment by the entire body.

In fact, this method was used in the modern impeachments of federal judges @RepHastingsFL and #WalterNixon.

Both #Hastings and #Nixon were #convicted of impeachment and #removed from office.

Resolving constitutional disputes over their trial in committee, #WilliamRehnquist abruptly declared the chosen method of trial an aspect of the Senate's sole prerogative to try impeachments.

After he accepted #bribes, after he #falsified #evidence to avoid conviction, after #lying under oath, as you can see from his @Twitter handle, #disgraced former judge #AlceeHastings was, nonetheless, permitted by the Senate to pursue subsequent office under the US Constitution.

Still, where is the Chief Justice?

His absence confirms to all that whatever the #kabukitheater event in the #Senate actually is, what it actually is not is the #impeachmentofapresident.

But if it isn't the impeachment of the president, or of another public officer, is it impeachment at all? In other words, does the Constitution endow the Senate with power to try private citizens that have been impeached by the House of Representatives?

Normally, when the federal government acts, it is an unsurprising response of many constitutionalists to inquire from whence the #fedgov derived the power to act.

Yes, #constitutionalists demand that every exercise of power by the federal #leviathan be securely fixed to a proper endowment of authority and duty through an express grant of power written in the Constitution.

Now, some will make an appeal to history, or, more precisely, to the history of the Senate's decisions to disregard the Constitution's grant of any power to that body to try private citizens impeached by the House.

The Senate did, in fact, try the impeachment of one of #UlyssesGrant's cabinet members, William Belknap, after he resigned from his office.

But arguing that the Senate must have the power to try #CitizenTrump because it #claimed the power to try Belknap proves nothing:

Think of it this way.

If an abuser strikes her spouse, causing injury, but "gets away with it," it is no argument for the lifetime license of an abuser's violent tendency to say that the violence was, after all, done before.

Or think of it this way:

In EVERY federal lawsuit, the trial court has been instructed by an existing body of binding decisions of #SCOTUS that she must assure herself that the jurisdiction of the Court invoked in the lawsuit is supported by the facts of the matter.

IOW, it is always a duty of a federal judicial officer to confirm, at each stage of litigation, that she possesses constitutionally authorized jurisdiction.

Nonetheless, despite a clear duty of fundamental importance, federal trial judges do get that assessment wrong, more often than you might believe, and either appeals courts or #SCOTUS are required to clean up that mess.

And that cleanup, an Order reversing with instructions to dismiss for want of jurisdiction, teaches us about an important duty of the Senate, at every stage of the impeachment process, to assure itself of its jurisdiction over the matter and the federal official to be impeached.

And, despite #Rehnquist's view that the trial of impeachments is untouchable the prerogative of the Senate, there must always be an available resort to the courts in order to ensure that the Senate does not begin writing its own version of the Constitution.