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This Court Holding Is Hard To Get

The U.S. House of Representatives’ impeachment of President Trump one week before he left office was flawed.

The House, for example, afforded the president no hearing. In the words of constitutional law, the House didn’t provide “notice and opportunity to be heard.”

However, for today’s column, let’s set aside impeachment flaws and focus on the initial, constitutional flaw of the impeachment trial, in the U.S. Senate.

Given that flaw, a willing and able person or persons should consider doing the law – and many past, present, and future officeholders – a favor.

The favor starts with seeking a federal-court holding on impeachment trials.

A good holding to seek would be that an impeachment trial may not take place after the person being tried has left office.

The simple, straightforward reason, as explained in last week’s column, is that the U.S. Constitution doesn’t contemplate impeachment, an impeachment trial, or an impeachment conviction of anyone no longer in office, regardless of who the person is, which office the person held, or what the person is accused of doing.

Some good court holdings are hard to get, because opportunities rarely arise.

This is one such holding, because it’s rare that anyone no longer in office is the target of impeachment or an impeachment trial.

Of course, no one is obligated to set the law right by bringing a constitutional challenge.

After all, bringing such a challenge can be burdensome. One of the burdens – the expense – can particularly deter those of lesser means.

However, this challenge – as constitutional challenges go – needn’t be expensive.

For one thing, the legal arguments – although needing more detail than any newspaper column can provide – aren’t complicated.

For another, it’s hard to imagine any material facts being in dispute, partly because the merits of the sole impeachment article against the 45th president wouldn’t be at issue. That is, whether he did what the article alleges wouldn’t be relevant.

Again, a good holding to seek would be that an impeachment trial may not take place after the person being tried has left office, because the Constitution contemplates neither impeachment, an impeachment trial, nor an impeachment conviction of anyone no longer in office, regardless of who the person is, which office the person held, or what the person is accused of doing.

Reasons for this holding extend beyond this Constitution-based reason.

If, for example, impeachment or impeachment trials don’t stop when officeholders leave office, then when do they stop?

Or consider this: Imagine the burdens of impeachment or an impeachment trial after leaving office. To what extent do such burdens create disincentives for officeholders or former officeholders, particularly those of lesser means, to disagree with powers-that-be?

One doesn’t have to look far back into history to recall that burdens from proceedings other than impeachment or impeachment trials have brought personal or financial ruin to many. These can be similar disincentives.

To what extent are such disincentives not merely an effect of, but also an intent behind, such burdens?

Anyway, it suffices for a court to reach the Constitution-based reason that an impeachment trial may not take place after the person being tried has left office.

A willing and able plaintiff or plaintiffs may do well to file a challenge in a federal-district court as soon as possible, with a goal of having a federal-appellate court, and eventually the U.S. Supreme Court, consider the challenge as well.

The ideal time to file it may have been as soon as President Trump left office, or perhaps as soon thereafter as the House of Representatives delivered the sole impeachment article to the Senate.

Just as the ideal time to challenge election illegalities is as soon as possible, as readers of this column four weeks ago will recall.

That doesn’t mean a well-presented challenge can’t be filed now.

It’s time.

Dr. Randy Elf joins those who also believe it’s too late to impeach others no longer in office, regardless of who they are, which office they held, or what they’re accused of doing.

COPYRIGHT ç 2021 BY RANDY ELF

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