TRUMP’S LEGAL ARGUMENTS ARE CLEARLY WRONG

©Wendell Griffen, 2020

Little Rock, Arkansas

January 30, 2020

President Trump’s defense lawyers have asserted two clearly invalid legal arguments.  First, they argue that the Senate has the power to decide whether subpoenas should issue for compel witnesses to testify and compel federal agencies to produce documents pertaining to the articles of impeachment against Trump.  Then they argue that the Senate has the power to overrule legal decisions by Chief Justice John Roberts about discoverability of witness testimony and documentary evidence, Trump’s claim of absolute immunity, and executive privilege. 

Each argument presents a question of law, not fact.  Resolving them is the work of Chief Justice John Roberts as a matter of law.    None of the arguments are matters for Senators to decide under any circumstances.  The arguments involve the exercise of judicial power.  Senators cannot review and overrule decisions by the Chief Justice on legal questions in Trump’s impeachment trial because the Chief Justice is presiding judge for the trial. 

The United States Senate is the only forum for trial of the President of the United States on charges of impeachment.  In legal terms, the Senate has original and exclusive jurisdiction, which means the Senate is the first and final forum for all issues of law and fact pertaining to the impeachment. 

There is no appellate review of impeachment trial results.  There is no appellate review of legal rulings made by the Chief Justice during impeachment trials.  Original and exclusive jurisdiction means precisely that:  “original” and “exclusive” power for the Chief Justice to decide issues of law, and “original” and “exclusive” power for Senators to decide questions of fact during Trump’s impeachment trial.

Senate Majority Leader Mitch McConnell is a lawyer.  McConnell knows that the Senate has original and exclusive jurisdiction for impeachment trials.  McConnell knows that the Chief Justice of the United States is the presiding judge for Trump’s impeachment pursuant to Article I, Section 6 of the U.S. Constitution. 

However, McConnell has brazenly distorted the legal issues in Trump’s impeachment so they appear as political issues requiring votes by Senators.  That is why Senate Minority Leader Chuck Schumer objected so strenuously to the resolution McConnell pushed through at the start of the Senate proceedings that called for Senators to vote on whether to call witnesses and receive documentary evidence after the parties made opening statements.    

Trial judges decide whether subpoenas should issue to compel witness testimony and production of documents.  Jurors never make those decisions.  Once a trial judge rules that subpoenas should issue to compel witness testimony and production of documents, jurors are never empowered to overrule trial judge decisions on those questions.

Trial judges decide whether claims of immunity are valid.  That is never a matter for jurors to decide.

Trial judges decide whether claims of privilege have been asserted, whether assertions of privilege are valid, and (if so) whether privilege has been waived.  Those rulings by trial judges are not appealed to jurors under any circumstances. 

House Managers should, therefore, urge Chief Justice Roberts to rule on the questions of law surrounding subpoenas for witness testimony and production of documentary evidence.  They should point to Article 1, Section 6 and remind everyone that Chief Justice Roberts has been empowered by the Constitution to decide the questions of law in Trump’s impeachment trial, and that his rulings are final. 

The role of Senators is to decide whether the factual evidence presented during Trump’s trial proves that he abused presidential power and obstructed Congress.  Senators aren’t authorized to decide issues of law. Chief Justice Roberts isn’t authorized to decide issues of fact.  The two roles (presiding judge and triers of fact) are distinct and never overlap. 

Trump’s legal arguments are wrong.  It’s time for Chief Justice Roberts – as presiding judge – to say so.