Structural Crisis: Senate Threatens to Usurp Presidency, Constitution, and Will of the People

Jan 22

Jan 22 Structural Crisis: Senate Threatens to Usurp Presidency, Constitution, and Will of the People

(LEONARD R. JAFFEE) By 8 January 2021, Mitch McConnell had determined he would not permit the Senate to try Trump until 19 January 2021 or later. He ruled that the Senate could not convene for special session unless all 100 Senators formally agreed; he maintained that ruling consistently, through 19 January 2021. By 10 January 2021, House majority Whip James Clyburn suggested the House may not deliver articles of impeachment to the Senate until after Biden has been in Office 100 days.

Not until today, 20 January 2021, did Pelosi deliver articles of impeachment to the Senate. The same day, McConnell said: (a) the Senate will receive the House managers at noon ET Thursday, 21 January, when the managers will present and exhibit the articles; (b) at 2:00 PM 21 January, Chief Justice John Roberts will be escorted into the Senate chamber and swear in all senators; (c) the impeachment articles’ trial will begin Tuesday, 26 January.

Until 20 or 21 January, the Senate majority would remain Republican; and a GOP-majority Senate would not only acquit Trump but also impeach, strongly, the articles of impeachment. So, why did Mitch McConnell block early Senate trial? Two possible intersecting reasons:

(a) McConnell hates Trump, Trump’s “populism,” and the MAGA population. [McConnell has suggested he would vote to convict — apparently, a “vote of conscience,” not a reflection of evidence, fact, and law (since all actual valid, reliable legally competent evidence indicates conclusively that Trump did not incite insurrection or commit, or urge others to commit, the crime of sedition) McConnell has said Trump fed the “mob” lies to provoke the mob to use violence to prevent Congress’s certification of Biden’s election.]
(b) If trial occurs (as it will) when the Democrats control the Senate, a conviction might seem a Democrat-framed lynching — not the GOP’s traitorous assassination of Trump’s “populism” and his political career.

I do not suggest such reasons are wise, logical, or even rational, but possibly real. McConnell is a crafty, dissembling, unscrupulous pseudo-aristocrat, but no Socrates or Aristotle.

“Liberal” and “moderate” Democrats, never-Trump Republicans,“The Squad, ” the “Deep State” — the nation’s whole jumble of psychopathic and otherwise-psychically-ill “Elite,” “woke,” anti-“White”/anti-male/anti-meritocracy/sexually-deviant members — all share one mantra : Trump and populism are evil, inimical to “Democracy” and the “culture,” “morality,” and “public interests” of the U.S. Populism must be extinguished. Never again may Trump “hold and enjoy any Office or honor, Trust or Profit under the United States” [U.S. Constitution Article I § 3 clause 7].

Why ought anyone care?

I voted twice for Trump, the second time (2020) merely because he was the lesser evil. In 2016, Trump promised more than a few moves that would have bettered the nation, e.g.,

(a) end then-existing military adventures and do not begin others unless truly necessary to the actual safety of the nation, and cease interfering in other nations’ governments but conduct foreign affairs with negotiation
(b) re-enact Glass-Steagell and strengthen it, and break up the worst big banks
(c) cut Mexican and Central American immigration drastically
(d) withdraw from NAFTA or modify it drastically for benefit of American citizen workers
(e) withdraw from the Pacific Rim trade agreement (“Trans-Pacific Partnership”) Obama promoted
(f) cut substantially major U.S. corporations’ outsourcing labor to foreign nation residents
(g) protect Social Security and Medicare
(h) withdraw from NATO or demand the other NATO members pay a fair share of its cost
(i) “drain the swamp” and cut the power of the Deep State
(j) improve the economic health of the Middle Class and cut Middle Class taxation
(k) cut healthcare costs

Trump meant and honored some promises — at least partly. But others — (a), (b), (f), (h), (i), and (k) — were bad jokes. His Israel policy was evil. He railed against growing impairment of free speech. But his concern was mostly his own freedom of expression; and he failed to do anything substantial toward restoring the general public’s freedom of speech. He continued, and worsened, Obama’s persecution of Julian Assange and Bradley [“Chelsea”] Manning. Edward Snowden remains exiled. Trump has pardoned or commuted sentence of tens of nefarious criminals, but not Assange, Manning, or Snowden.

Kennedy, Johnson, Nixon, Carter, Reagan, Clinton, George W Bush, and Obama supported the illegal “state” called Israel. But Trump lifted Israel-support, and, concomitantly, anti-Iran policy to insane levels. Trump’s Israel-related domestic policy included design of blocking or impeding first-amendment-protected speech and assembly that opposes Israel’s genocidal persecution of Palestinians. Trump rendered formal equation of anti-Zionism and anti-Semitism and sought to outlaw the Boycott, Divest, and Sanction movement.

So, why ought we care whether, after Trump is not President, the Senate tries the articles of impeachment of Trump and rules that Trump shall not “hold and enjoy any Office or honor, Trust or Profit under the United States”? Why ought we care even whether simply the Senate tries the articles of impeachment but acquits Trump?

Trump’s 2016 election suggested a true populist might become President — not a closet “Elite,” but one who would resist the Elites and the Deep State, not surround himself with snakes of the swamp. If the Senate tries Trump and rules that Trump shall not “hold and enjoy any Office or honor, Trust or Profit under the United States” because Trump and his supporters exercised their First Amendment freedom of speaking and assembling to support populism and protest a corrupt election, speech and assembly freedoms will cease and near-certainly no capable, electable populist will run for the Presidency.

But that consideration is subsumed in another, greater, more vital, fundamental concern.

We have a federal Constitution. Every federal legislator and judge promises, by oath, not to act contrary to that Constitution.

Every federal judge must promise this: “I…solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States.”

Every federal legislator must promise this: “I…solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”

The Constitution’s Preamble asserts:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The highlighted terms accord with Benthamian Utilitarianism — the greatest human happiness of the greatest human number.[1]

Much (but surely not all) pertinent history suggests that Bentham’s thinking influenced the construction of the Preamble — though in the 18th century, the greatest number did not include Black slaves, non-Black indentured servants bound long to their masters, or any but spare few indigenous Americans.[2]

Democrats, Never-Trump Republicans — Congress-Members, many federal judges, Trump-administration-members — and too many lunatic pundits, “journalists,” and common folk have been hell-bent toward (a) destroying Trump and any populist ideas associated with him and (b) instituting a regime of anti-utilitarian lunacy in which freaks are normal and psychopathic greed is the moral code.

That bent is anathema to the federal Constitution’s Preamble. In the election-fraud-denial aspect of the Trump impeachment, that bent is anathema also to several of the federal Constitution’s provisions that are fundamental to realization of the purpose abstracted in the Constitution’s Preamble.

Where that bent manifests in Congress-Members and federal Judges, it reflects a flagrant dishonor of magnitude rarely witnessed in the history of nations. It is criminal disloyalty. It is criminally conspiratorial because increasingly it occurs with impunity.

The truly grave matter is not the Senate’s treatment of Trump — whether particularly the Senate tries Trump and holds Trump guilty. Such result would be unfair to Trump — bar, illegally and unjustly, his holding any “Office or honor, Trust or Profit under the United States,” defame him unjustly and horrendously, harm him economically for wrong cause, and not-unlikely endanger him otherwise. Accordingly, the pro-impeachment Senators would deserve severest rebuke.

The core and overarching matter the government’s and the political parties’ quasi-seditious/quasi-treasonous trashing of our Constitution — “quasi-seditious/quasi-treasonous,” because not involving or suggesting use of force or involving or aiding an “enemy” of the U.S. [Compare 18 U.S. Code §§ 2381- 2386 & U.S. Constitution Article III § 3 clause 1].[3]

That is why I write this article. That is why I shall show the dishonor — and illegality — of the House’s delivering articles of impeachment to the Senate and the Senate’s trying Trump after Trump’s term has ended and he has left Office. And that is why I shall show that if federal judges refuse to declare such Congressional action unconstitutional, those federal judges will have violated the Constitution and their oaths and committed impeachable offenses.

I. Senate “precedent” cannot govern whether the Senate can try Trump after his term has ended and he has left Office

Some “scholars” argue that the Senate may adjudge the second Trump impeachment after Trump is not in Office (after his Presidency term has ended and he has vacated Office). The arguments cite “precedents,” which I discuss below. But precedent-reliance is error.

The Senate is not a common law court. The Senate cannot rely on or be bound by the Senate’s previous impeachment-trial judgments, as if those decisions were judicial “precedent.” In impeachment trials, the Senate’s jurisdiction depends directly and solely on these Article I § 3 provisions:

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. [Article I § 3 clause 6]
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office or honor, Trust or Profit under the United States. [Article I § 3 clause 7]

In the Article I § 3 clause 7 phrase “removal from office, and disqualification to hold and enjoy any Office…,” the conjunction is not “or,” but “and.” Hence, if the Senate adjudges an impeached Officer guilty of the charge presented by articles of impeachment, the Senate may remove the Officer from Office AND disqualify him from holding and enjoying “any Office or honor, Trust or Profit under the United States.” The Senate cannot disqualify the impeached Officer from holding and enjoying “any Office or honor, Trust or Profit under the United States” unless the Senate removes him from Office.

Therefore, the case must be one in which the impeached official can be removed from office. And such case does not obtain where the Officer does not hold, or remain in, Office.

Were the critical conjunction “or,” not “and,” the Senate could choose either (a) to remove an impeached Officer from Office or (b) to disqualify him from holding and enjoying “any Office or honor, Trust or Profit under the United States” [or both (a) and (b), if the impeached Officer remained in Office when the Senate tried him]. Hence, if the critical conjunction were “or,” even if an impeached Officer were not in Office, the Senate could disqualify him from holding and enjoying “any Office or honor, Trust or Profit under the United States.” But the critical Article I § 3 clause 7 conjunction is not “or.” It is “and.”

Yet, suppose, in impeachment trials, the Senate were like a common law court — bound by, or entitled to rely on, Senate impeachment trial “precedent.” Still, never has the Senate held that the Senate can try an impeached Officer who is not in Office at the time of trial.

II. No Congressional “precedent” could establish that the Senate can try Trump after his term has ended and he has left Office; but, rather, prior cases indicate the contrary

The first federal impeachment case was the 1798 impeachment of U.S. Senator William Blount. The Senate had expelled Blount for “high misdemeanor.” Blount was ordered to appear before a Senate select committee. He refused. A Senate impeachment trial began without him. The trial never reached the merits. The Senate dismissed the impeachment because the Senate lacked jurisdiction since Blount was not in Office at the time the impeachment articles reached the Senate for trial: Blount had been expelled from the Senate.

Some “scholars” cite the 1827 case of Vice President John C. Calhoun. Calhoun’s enemies were rumoring that Calhoun engaged in financial misconduct when, earlier, he was Secretary of War. Though Calhoun had left the Office of Secretary of War and had become Vice President, Calhoun begged the House to impeach him concerning whether he abused his Office when he was Secretary of War. Calhoun wanted a forum and process in which he could refute the rumors.

The House investigated Calhoun and cleared him. But he was not impeached. Hence, the Calhoun case does not support the argument that the Senate can try an Officer after he has left Office.

Some “scholars” cite also the 1846 case of Daniel Webster. Webster was President Tyler’s Secretary of State. Three years after he left the post (and four years before he returned to it), Webster was accused of using federal funds improperly while he was Secretary of State (under Tyler). Some House members thought impeachment would be proper means of testing the accusations.

During House’s debates of Webster’s case, John Quincy Adams asserted that the House could impeach a person after he left Office. Adams’s assertion is oft-cited as “proof “ of the truth of its content. But impeachment did not occur. Hence the case, and Adams’s assertion, prove naught but the fact that some House members thought impeachment was possible though Webster had left Office.

Some “scholars” cite also the 1870 case of Benjamin Franklin Whittemore and John Deweese. The House censured Whittemore and Deweese for selling commissions to the Naval Academy while Whittemore and Deweese were House-Members — despite Whittemore and Deweese were no longer Members of the House. The House debated whether the House could impeach Whittemore and Deweese. But impeachment did not issue — partly because one House-Member thought that the Blount case [see above] had established that Congress-Members could not be impeached.[4]

Some “scholars” cite the 1873 case of Judge Mark Delahay. House-Members alleged that Delahay’s personal habits rendered him unfit for judicial office: he was intoxicated both on the bench and off. Delahay resigned before the House could draft accusation-specific, formal articles of impeachment and deliver them to the Senate for trial. So, Delahay was neither formally impeached nor submitted to Senate trial. Hence, the case cannot be precedent.

In the 1876 case of Secretary of War William Belknap, the House impeached Belknap after he had resigned his Office. The Senate’s minority insisted the Senate lacked jurisdiction because Belknap had resigned his Office. For that reason the minority voted to acquit. Belknap was acquitted.

Though the Senate’s simple majority argued that the Senate had jurisdiction and pressed the case to judgment, that argument is not precedent. The argument was not upheld by two-thirds vote. Belknap was acquitted. And Belknap’s Office had not ended (albeit Belknap had left Office). Belknap had resigned, and, therefore, could have continued holding Office.

A more interesting case is the 1912 impeachment of Judge Robert Archbald. At the time of his impeachment and Senate trial, Archbald was an Article III judge of the U.S. Commerce Court, an Article III court.[3]

But of the twelve articles of impeachment, six articles addressed alleged misconduct committed while Archbald was a judge of a U.S. District Court, another Article III court. Still, the Archbald case is not precedent for the proposition that the Senate can try an Officer’s impeachment after the Officer has left office.

Six impeachment charges related to alleged misconduct Archbald committed while holding the Office of a U.S. Commerce Court judge. While Archbald was still a Commerce Court judge, Archbald was convicted of two of those six charges. Archbald was acquitted from all six impeachment charges that related to his conduct occurring while he was a District Court judge.

Archbald had been elevated from a U.S. District Court judgeship to another federal “Article III” judgeship, a Commerce Court judgeship, when, and from which, the Senate removed him. Archbald’s two federal judgeships can be treated as one “office” — for impeachment and Senate trial purposes — for several reasons:

(a) Often U.S. District Court judges sit in U.S. Circuit Court three-judge panels in federal appellate cases.
(b) Commerce Court judges were reassigned to another appellate court when their term on the Commerce Court expired. Even while they served on the Commerce Court, Commerce Court judges served also as at-large appellate judges whom the U.S. Supreme Court’s Chief Justice could assign to any federal appellate court.

Commerce Court judges heard claims arising from orders of the Interstate Commerce Commission. Commerce Court judges rendered judicial review of such orders. So, effectively, Commerce Court judges acted as hybrid trial-court/appellate-court judges. [The Commerce Court was abolished one year after Archbald was removed from that court. In 1982, the “Federal Circuit” Court of Appeals was given jurisdiction like, but broader than, that had by the Commerce Court.]

A federal District Court judge, federal Court of Appeals judge, or any other federal “Article III judge” holds office for life, unless impeached and removed for bad “behaviour.” [Compare endnote 5 (infra) & U.S. Constitution Article III § 1 sentence 2 (quoted infra) & U.S. Constitution Article II § 4 (quoted supra)]. So, even after elevated from his District Court judgeship, Archbald continued to hold the same Office — the Office of an Article III judge. An Article III judge is an Article III judge — not only a judge of a specific Article III federal court.

So, Archbald had not left office — U.S. Constitution Article III judicial office — when, and from which, the Senate removed him, even if (as was not true) the Senate had removed him partly because of misconduct he committed while a U.S. District Court judge.

One may question whether federal Article III judges’ so-called “impeachments” rest solely, or even partly, on the power the Constitution’s Article II § 4 assigns to the House.

U.S. Constitution Article III § 1 sentence 2 provides: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished….” [See also endnote 5 (infra).] Since the Article III judge-removal standard is breach of good behavior, federal judge impeachment/removal seems a process somewhat, or materially, distinct from the process of impeaching and removing other “civil Officers” — for “Treason, Bribery, or other high Crimes and Misdemeanors” [U.S. Constitution Article II § 4].

Hence, for reason of such distinction, the Archbald case may be specially not precedent for impeachments and Senate trials of Presidents, Vice Presidents, and other non-judicial civil Officers.

The ultimate conclusion must be that, ‘”as a matter of law,” the Senate cannot try an impeachment of a President, Vice President, or other federal civil Officer (except, perhaps, an Article III judge) whose Office’s term has ended and who has thus left Office. The Senate will violate the Constitution and act unlawfully unless the Senate refuses to try Trump and dismisses the articles of impeachment for lack of Senate jurisdiction — because Trumps term has expired and he has vacated Office.

III. The federal Constitution empowers a federal court to declare unconstitutional the Senate’s trying an ex-President after his term has ended and he has vacated Office; and such declaration would not usurp a power of Congress or trespass upon Congressional authority

Suppose, despite Trump’s Office has ended and Trump has vacated the Office of the Presidency, the Senate tries Trump and disqualifies him from holding and enjoying “any Office or honor, Trust or Profit under the United States.”

Marbury v. Madison, 5 U.S. 137 (1803), established that the federal judiciary possesses the sole power to determine conclusively what the law is — what is the law of the land, including the “law” of the federal Constitution:. “It is emphatically the duty of the Judicial Department to say what the law is.” [Idem at p.4.]

Respecting whether the House can impeach an ex-President and the Senate try him after his Office has ended and he has vacated it, the threshold, jurisdictional matter is purely one of constitutional law — purely the meanings of certain terms of the federal Constitution. Hence, a federal court would not usurp Congress’s power or invade the province of the Congress if the court issued a declaratory judgement determining that matter in Trump’s case.

Cf. Powell v. McCormack, 395 U.S. 486 (1969) (in which I wrote part of the winning brief). In the Powell case, Petitioner Adam Clayton Powell had been duly elected to the House of Representatives, 90th Congress. He was denied his seat by House Resolution No. 278. The Resolution was premised on charges that Powell had misappropriated public funds and abused the process of the New York courts.

Petitioner Powell (and certain voters) brought federal District Court suit for injunctive, mandatory, and declaratory relief. Respondents were certain named House members and the Speaker, Clerk, Sergeant at Arms, and Doorkeeper of the House. The suit’s core and fundamental allegation was that the Resolution violated U.S. Constitution Article I § 2 clauses 1 & 2.

U.S. Constitution Article I § 2 clause 1 provides (in apparently mandatory terms) that House members be elected by the people of each State. Article I § 2 clause 2 sets the qualifications of House-membership — age, citizenship, and residence — all satisfied by Powell.

Powell claimed that those Article I § 2 qualification-requirements were exclusive, that the House Clerk threatened (unlawfully) to refuse to perform the service to which Powell was entitled as a duly elected Congressman, that the Sergeant at Arms refused (unlawfully) to pay Powell’s salary, and that the Doorkeeper threatened (unlawfully) to deny Powell admission to the House chamber.

The Supreme Court held, inter alia, thus:

Although the Speech and Debate Clause (Article I, Section 6, clause 1) bars judicial action against respondent Congress-Members for statements (including votes) rendered in Congressional proceedings, that clause does not bar action against Congressional employees charged with unconstitutional activity — despite the employees act pursuant to express orders of the House (or Senate) — and it does not preclude judicial review of the constitutionality of the underlying legislative decision. [395 U.S. at 501-506.]

Federal courts have subject matter jurisdiction over the petitioners’ action. [395 U.S. at 512-516.] The case is one “arising under” the Constitution per Article III, since petitioners’ claims will be sustained if a federal court gives the pertinent Constitution provisions one construction and will be defeated if it gives those provisions another construction. [395 U.S. at 513-514.]

The litigation was justiciable also because

(a) the claim presented and the relief sought can be judicially resolved. [395 U.S. at 516-518.]
(b) if petitioners are correct, the House had a duty to seat Powell once it determined that he met the standing qualifications set forth in the Constitution. [395 U.S. at 517.]
(c) The relief sought is susceptible of judicial resolution, since, notwithstanding the appropriateness of a coercive remedy against House personnel (an issue the Court did not decide), declaratory relief is independently available. [395 U.S. at 517-518.]

In judging the qualifications of its members under Article I § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution. [395 U.S. at 550.]

Just so, the case did not involve a “political question” [395 U.S. at 518-549.][6] — because

(a) The House’s Member-qualification-judging power suffers a “textually demonstrable” limitation of judging only qualifications set forth expressly in Article I §§ 2 & 5;[7]

hence, the House has no power to exclude a Member-elect who meets the Constitution’s membership requirements. [395 U.S. at 518-548.]
(b) The case does not present a political question “in the sense urged by respondents” — that the case’s consideration would entail a “potentially embarrassing confrontation between coordinate branches” of Government — since “on occasion” our system of government requires federal courts to interpret the Constitution differently from how other branches interpret it. [395 U.S. at 548-549.]

If Trump — or, e.g., a Senator — sought declaratory judgment of whether the Senate lacks power of trying Trump now, after his Office ended and he vacated it, the law and jurisdictional facts would be near-perfectly analogous to those of Powell v. McCormack. In the Trump impeachment trial case, the legal matter favors Trump more than did the legal matters in Powell v. McCormack (supra).

In the Trump impeachment trial case the matter is the proper construction of U.S. Constitution Article I § 3 clause 7 (quoted supra). A declaratory judgment would not attack the Senate or a Senator — or even a House-Member who prosecutes the impeachment. Rather, a declaratory judgment would determine only whether Article I § 3 clause 7 empowers the Senate to try and impose an Article I § 3 clause 7 penalty on Trump despite his Office has ended and he has vacated it.

The case would not present a “political question.” The case would “arise under” the Constitution per Article III, since petitioners’ claims will be sustained if a federal court gives Article I § 3 clause 7 one construction but defeated if it gives that provision another construction. Per a “textually demonstrable” limitation of the Senate’s power of punishing an impeached President, the Court could decide “as a [pure] matter of law” whether the Senate has jurisdiction to try impeachment of an ex-President after his Office has ended and he has vacated it.

The case would not be merely “an occasion” where “our system of government requires a federal court to interpret the Constitution differently from how other branches interpret it.” It would epitomize necessity of the federal judiciary’s acting to protect our government’s constitutional organization from one government-branch’s becoming dictatorial — usurping the Presidency, the Will of the People, and the government-organization and political prescriptions of the Constitution.

Nor would the case involve a federal court’s entering a “potentially embarrassing confrontation” of the Senate. If the Senate were embarrassed, the Senate would have embarrassed itself by pursuing a grave-effect-threatening, flagrantly unconstitutional defamatory and otherwise grievously harmful punishment of a duly elected President — especially since the Senate would do so for corrupt and nation-destructive, wickedly-pernicious political motive.

The petition could name as respondent(s) the Senate Clerk, the Senate Secretary, or both; and the petition could plead that neither Clerk nor Secretary can call roll to determine presence of Trump trial quorum because the Senate lacks jurisdiction to commence the trial.[8]

The court would not judge or even consider or quote a single word of any Senate debate or of any Senator, or even of a House-member who prosecutes the impeachment.

If the petitioner were a Senator, the core question would be whether, constitutionally, the petitioning Senator, or any Senator, can vote to try an ex-President after his Office has ended and he has vacated it.

And the matter would be only — purely — the meaning of Article I § 3 clause 7 : precisely what power that provision grants Senators, or the Senate, and what limit(s) that power suffers.

Surely, a Trump-supporting Senator, like Senator Josh Hawley, will “suggest the absence of a quorum.” The declaratory judgment petition can be filed, electronically, an instant after such Senator states such quorum-absence suggestion. That Senator may even be named a petitioner.

The petition could request a temporary restraining order issued to the Senate Clerk or Secretary or both — an order restraining the Clerk or Secretary from calling roll. Or the petition could seek solely a declaratory judgment respecting the pertinent limit(s) of the Senate’s Article I § 3 clause 7 power.

If the Clerk or Secretary calls roll and trial begins, the court could determine whether the Senate lacks jurisdiction to proceed with the trial. If the court declares that the Senate lacks jurisdiction, the court would issue declaratory judgment that holds so.

The court could not stop the proceeding. No U.S. Marshall could enter the Senate to force the Senate to halt trial.

But Trump would have a judgment that would invalidate a Senate determination that he (Trump) cannot “hold and enjoy any Office or honor, Trust or Profit under the United States” [per U.S. Constitution Article I § 3 clause 7]. And such judicial judgment ought (a) militate against any court’s adjudging Trump guilty of sedition or inciting a riot when he gave his 6 January 2021 speech and (b) enable Trump to run again for political office.[9] And it would encourage a true, courageous, electable populist to run for the Presidency. And it would accord the “lower” classes — the “common folk” — some rational hope.

I expect, however, that no federal court will permit even preliminary consideration of a petition seeking declaration that the Senate lacks jurisdiction to try Trump’s impeachment. Corruptly, they will insist, contrary to law, that such petition puts a political question or is barred by the separation of powers doctrine or that the petitioner lacks standing for lacking “legally protected interest” or…….[10]

With the federal judiciary’s corrupt or cowardly treatment of legitimate election-result challenges, the federal judiciary has shown it has abnegated its constitutional duty and will incline to commit impeachable offenses to avoid resisting the Elites’ and the Deep State’s subjugation of the People. The Supreme Court has shown that five or more pseudo-aristocrat judges (two Democrats, three or more Republicans) align with the Elites and the Deep State. Dr. Paul Craig Roberts is correct. The People are suffering a revolution wrought by the “Establishment” (of the Elites and the Deep State).

Leonard R. Jaffee is Professor of Law Emeritus: Juris Doctor degree, Rutgers (Newark) School of Law, Editor-in-Chief of Rutgers Law Review, graduated first-in-class, has been full-professor member of eight Law Schools, including Washington University (St. Louis), Rutgers (Camden) University, Villanova University, Willamette University (where he held an endowed Chair), and l’Université de Montpellier (France). Among his major law-topic publications (oft-cited & relied-on by courts & lawyers) are:

The Troubles with Law and Economics , 20 Hofstra Law Rev. 777 (1993) (155 pages)
Of Probativity and Probability: Statistics, Scientific Evidence, and the Calculus of Chance at Trial , 46 U. Pittsburgh Law Rev. 925 (1985) (157 pages)
The Constitution and Proof by Dead or Unconfrontable Declarants , 33 Arkansas L. Rev. 227 (1979) (150 pages)
State Citizen Rights Respecting Greatwater Resources Allocation: From Rome to New Jersey , 25 Rutgers Law Rev. 571 (1972) (139 pages)

Among his online law-topic publications are:

HOW NOT TO OVERTURN CITIZENS UNITED, Reader Supported News (24 June 2014)
BRADLEY MANNING & EDWARD SNOWDEN: HAVE THEY WHISTLEBLOWER DEFENSE?, Reader Supported News (23 June 2013)
IMPEACHING CHENEY (2007)

His arguments have won often in the U.S. Supreme Court, other federal courts, and appellate courts of several states. Many litigator-attorneys rely on his advice and arguments.

NOTES

[1] Compare the Declaration of Independence’s assertion of an “unalienable” right of “Life, Liberty and the pursuit of Happiness,” which comports with Benthamian utilitarianism — except that no “rights” are inalienable, natural rights, but all rights are solely creatures of law (even if the “law” is a primitive tribal chief’s promise of violent enforcement or protection of two tribe-members’ private agreement). “Benthamian” references Jeremy Bentham, 1747-1832, an English economist, philosopher, and jurist.

Bentham proposed his utilitarian principle, “principle of utility,” first in 1776, in his work Fragment on Government. In a text published first in 1789, An Introduction to the Principles of Morals and Legislation (Copyright © Jonathan Bennett 2017: All rights reserved), Bentham elaborated extensively upon his Fragment on Government’s “utilitarian” principle. In footnote 1 of An Introduction to the Principles of Morals and Legislation (supra), Bentham wrote:

I have heard it described as `a dangerous principle’, something that on certain occasions it is `dangerous to consult’. This amounts to saying that it is not consonant to utility to consult utility-i.e. that it is not consulting it, to consult it.
* * * [Ellipsis added.]
Not long after the publication of my `Fragment on Government’ (1776), in which the principle of utility was brought to view as an all-comprehensive and all-commanding principle, one person who said something to that effect was Alexander Wedderburn, at that time Attorney General…. [Ellipsis added] He said it in the hearing of someone who passed it on to me. So far from being self-contradictory, the remark was shrewd and perfectly true…. [Ellipsis original.] A principle that lays down, as the only right and justifiable end of government, the greatest happiness of the greatest number-how can it be denied to be dangerous? It is unquestionably dangerous to every government that has for its actual goal the greatest happiness of one person, perhaps with the addition of a comparatively small number of others whom he finds it pleasing or convenient to admit to a share in the concern, like junior partners. So it really was dangerous to the sinister interest of all those functionaries, Wedderburn included, whose interest it was to maximise delay, vexation, and expense in judicial and other procedures, for the sake of the profit they could extract from this. In a government whose goal really was the greatest happiness of the greatest number, Wedderburn might still have been Attorney General, then Chancellor; but he would not have been !Attorney General with £15,000 a year, or !Chancellor with a peerage and a veto on all justice and £25,000 a year, and with 500 sinecures at his disposal.

Wedderburn parallels well our 21st century American Elites, Democrats, never-Trump Republicans, neoliberals, and neoconservatives — even, in some essentials, BLM and advocates of “affirmative action” and certain homosexual and transsexual rights. Surely Wedderburn would support Trump’s Senate trial conviction, enthusiastically.

[2] I do not suggest that the Black Lives Matter movement [“BLM”] deserves support or respect. BLM is rabid, much criminal, stupid racism. BLM does not seek legal equality or rational legitimate racial equity — but subjugation of “White” Americans and unearned socioeconomic/political advancement of American “Blacks.”

[3] U.S. Constitution Article III, § 3, clause 1 provides:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Per U.S. Constitution Article III, § 3, clause 1, one commits “Treason” against the United States only if either

(a) one wages war against the United States — as by fighting for a foreign state attacking or attempting to attack the United States or by joining an armed insurrection (against the U.S. government)

(b) one adheres to — adopts a supportive association with — a foreign power engaged in open hostility against the United States and renders active aid or comfort to the troops or other belligerency-agents of that foreign power.

The Article III, section 3, clause 1 term “enemies,” applies only to troops or other belligerency-agents of a foreign power manifesting a state of open hostility against the United States. The term’s denotation does not include U.S. domestic rebels engaged in insurrection or sedition against the U.S. government.

But if an insurrection’s armed forces form a “body politic” (as did the Confederacy of the U.S. civil war), then such armed force’s members are “enemies”: Such belligerent body politic is effectively a “foreign” power. And if one adheres to such belligerent body politic and renders aid or comfort to its troops or other belligerency-agents, one commits “Treason.” But such belligerent body politic is not an “enemy” unless its belligerency manifests as war (armed violent belligerence).

Article III, section 3, clause 1 applies only to disloyal acts committed during time of war or armed insurrection and in pursuit or support of such war or armed insurrection— not to disloyal speech or anti-government conduct occurring in peacetime.

Compare, e.g.,

(a) pp.331-335 of https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2589&context=ylj

(b) https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf

(d) https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/39

(e) https://law.justia.com/constitution/us/article-3/44-aid-and-comfort-to-the-enemy.html

[4] U.S. Constitution Article II § 4 suggests a Congress-Member is not impeachable:

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 legislator is not a “civil Officer.” The term “civil Officer” denotes a member of the Executive (“executive officer”) or the Judiciary (“officer of the court”). Just so, since the phrase “and all civil Officers” follows the phrase “The President, Vice President,” the phrase “and all civil Officers” connotes Officers like the President and Vice President, not legislators (Members of the House or Senate).

[5] An Article III court is a court established per Article III and having judges holding life tenure [“shall hold their offices during good behaviour”] per Article III § 1. Like the U.S. Commerce Court and U.S. District Courts, federal Courts of Appeals are Article III courts and their judges Article III judges.

[6] Per the “separation of powers” doctrine, a “political question” is non-justiciable [not determinable by a (federal) court].

[7] Article I § 2 provides, inter alia, this:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Article I § 5 provides, inter alia, this:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

[8] Per the Standing Rules of the United States Senate, if any senator requests a quorum call by “suggesting the absence of a quorum,” the current Clerk must call the roll of the Senate and note which members are present. In practice, senators almost always request quorum calls not to establish the presence of a quorum, but to delay proceedings temporarily without having to adjourn the session.

According to the Congressional Research Service publication “Voting and Quorum Procedures in the Senate” (Updated March 26, 2020), under the Senate’s standing rules, if no other Senator has the floor,

any Senator (including a Senator who is presiding) may “suggest the absence of a quorum.” The presiding officer may not respond to this statement by counting the number of Senators actually present unless the Senate is operating under cloture. At all other times, when a Senator suggests the absence of a quorum, the presiding officer responds by directing the Clerk to call the roll. Paragraph 3 of Rule VI requires:

If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the presiding officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate.

A quorum call begins formally when the Clerk calls the first name. Once the quorum call has begun, the Senate may not resume the conduct of business until a Senator-majority responds to the call, or unless the Senate agrees by unanimous consent to “dispense with further proceedings under the quorum call.” While the quorum call is in progress, no debate or motion is in order, nor may the Senate act on any unanimous consent request except a request to dispense with the call.

[9] I wrote “…such judicial judgment ought to militate against any court’s adjudging Trump guilty of sedition or inciting a riot when he gave his 6 January 2021 speech and enable Trump to run again for political office” — not “such judicial judgment will militate against…[etc.] — because, with their treatments of numerous legitimate, well-evidence-supported petitions and complaints challenging the 3 November 2020 Presidency election, the federal courts have shown themselves incapable of dispassionate enforcement of the law — for lack of honor or courage, or because they are corrupt.

[10] In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Justice Scalia stated the now-mechanically-applied rule that federal judicial standing requires that the claimant has suffered an “injury in fact,” which, Justice Scalia asserted, is “a concrete and particularized, actual or imminent invasion of a legally protected interest.” He added that standing is specially unlikely where “third parties,” rather than the named claimants, are the objects of Government action or inaction that the claimants challenge. 504 U.S. at pp.559-562.

In that Lujan case, the claimants were wildlife conservation and other environmental organizations who sought a declaratory judgment that two Cabinet Officers violated the Endangered Species Act when they issued a new regulation that cut protection of certain species habitat. Justice Scalia opined that the claimants lacked standing partly because their claims sought to further arguably statute-protected interests of persons or non-human entities other than the claimants.

In Lujan, the “legally protected interest” problem was that the claimant’s alleged interest did not fit the specific language of the statutory protection the claimants asserted. If Trump or a Senator filed a federal court petition seeking declaration that the Senate lacks jurisdiction to try Trump’s second impeachment because Trump’s Office has ended and he has vacated it, the court could not assert truthfully, honorably, non-corruptly, that the claimant lacks legally protected interest.

Trump is entitled to the protection of the limit Article I § 3 clause 7 imposes on the Senate. A Senator is entitled not to be put in a Senate situation in which his Office will be tainted by unconstitutional process or he will be forced to suffer a Hobson’s choice of acting as if unconstitutional Senate process were lawful or disassociating himself from that process by refusing to participate and hence suffering political calumny and ostracism or Senate censure or expulsion from the Senate.