Trump Wins!…by beating the Constitution.

That’s not really something to celebrate, but that’s the short summary as Trump’s second trial ends in an acquittal. The question of whether or not it was even constitutional to try him after he has left office is only addressed in a handful of statements within the Constitution:

If it’s constitutional, say this: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Article 1, Section 3)

If it’s unconstitutional , say this: 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. (Article 2, Section 4)

There are some who are concerned that impeaching a private citizen would set a dangerous precedent, but it would seem to me that allowing an individual who was elected or appointed to office to escape judgement by leaving office is supremely more dangerous. Why? Pardons are not permitted in the case of impeachment, but they are, of course, allowed for federal crimes. Those intending to subvert the will and purpose of the Constitution need only to resign to ensure no legislative punishment and, even more insidiously, receive a pardon from the executive branch for offenses committed and get off scot-free (see Richard Nixon).

I find it hard to imagine that the framers intended this to be possible, but those defending the trial as unconstitutional, are leading the country right down that path. Obviously, I am not an expert on constitutional matters, so I nerded out and looked up the last relevant example of the impeachment of an individual no longer in office: William Belknap, former Secretary of War, who had been impeached by the House after he had resigned.

Many of the arguments I read (and I didn’t read all 1,166 pages…I’m not that much of a nerd) would be convincing even today. Here’s how the house managers and lawyers of 1876 answered the questions asked in 2021:

If Trump is no longer President, is this trial unconstitutional?

We claim that the limitation of the Constitution is not as to time, it simply relates to a class of persons and the word ‘officer’ is used as descriptive…an officer in one sense never loses his office. He gets his title and he wears it forever and an officer is under this liability for life; if he once takes office under the United States, if while in office and as an officer he commits acts which demand impeachment, he may be impeached. (excerpted)

Can a private citizen be impeached?

It is obvious that the only persons liable to impeachment are those who are or have been in public office. All executive and judicial officers from the President downward, from the judges of the Supreme Court to those of the most inferior tribunals, are included in this description.

The Constitution requires removal from office upon conviction. If the Senate cannot remove him (since his term expired), how is this trial not a sham?

It is argued if the court cannot inflict the whole punishment prescribed by law, it has no jurisdiction and cannot inflict any portion of it. Such a statement in the ordinary courts of justice would meet with little favor. In larceny, the judgment usually prescribed is that the goods be returned with fine and imprisonment. If the criminal was likely to be prosecuted, he could go back and restore the goods, and, if this principle should hold, plead that the whole sentence which he had the lawful right to receive could not be inflicted and therefore he would not submit to any trial or punishment.

Like Trump, a majority of Senators present voted for Belknap’s conviction, and also like Trump, he was acquitted.

Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?

UPDATE: The Karina Vetrano Case

The Howard Beach jogger’s murder case is set for a re-trial.

Sometime ago, I wrote about Chanel Lewis, the accused killer of jogger, Karina Vetrano. The murder took place back in 2016 and about six months later, the NYPD arrested Lewis and charged him with murder and almost immediately, I was sure they didn’t have the right guy. Chief among my concerns was that neither physical evidence nor eyewitness testimony led the police to him, a suspicious cop did. That was my first red flag and now that the case ended in a mistrial and a new trial is set to begin later this month, I have a couple more to wave:

red flag

“This woman put up a ferocious fight, right to the end. She was beaten quite severely, which would suggest she put up a big fight,” 

– Chief of Detectives, Robert Boyce

The above description is based on the fact that when Ms. Vetrano’s body was found, she was covered in scratches, had broken teeth and was strangled with such force, that the killer’s hand print was marked into her neck. Contrast that description with the one in Mr. Lewis’ medical record, from a visit to the doctor the day after the murder: “Head atraumatic, neck supple. No other injury.” The injury to his hand, described as ‘superficial.’ This woman fought for her life and the accused has no markings to show for it? She was a frequent runner, in reasonably good shape. Whoever murdered and assaulted her would, at the very least, have some scratches and bruising; Mr. Lewis had nothing of the sort.

“The District Attorney’s case relies on three separate pieces of evidence tying Lewis to the crime (of which there were no known eyewitnesses). One of those pieces of evidence is the prosecution’s claim that Lewis’s DNA was found on Vetrano’s back and cell phone,”

The DNA evidence in this case has been categorized in a myriad of ways: as a ‘strong profile’, a ‘possible match’, a match and as an unproven part of a complex mixture of  several DNA. The lack of consistency in how the DNA is described suggests a fluid interpretation of the results which would likely lean in favor of prosecutors because it’s a good thing when you can’t definitively eliminate your key suspect from a pool of DNA, but it severely undercuts the premise that there was only one killer. And if you can’t definitively eliminate them, you can’t definitively ID them either. The two places where Lewis’ DNA shows up with certainty is on Vetrano’s back and cellphone, odd places considering how vicious the attack was and certainly not enough for a conviction.

“…the Queens DA’s office has been withholding crucial pieces of evidence from the media, including 911 calls and medical records,

So instead of honoring requests from the media to view integral pieces of evidence presented at trial, Judge Michael Aloise has elected to defer those appeals to the Queens DA’s public information office. He gave no reason for the shift which runs counter to the traditional practice of the trial judge being responsible for the release of such information. The DA’s office has thus far denied requests without explanation except for a presumed one: they have something to hide.