Breitbart | Robert Barnes: Neither of the impeachment charges against President Donald Trump is indictable. As such, neither is impeachable. The Constitution compels the Senate tp acquit President Trump as a matter of law.
There are three critical reasons for the principle that impeachable offenses be indictable offenses
First, the plain text of the Constitution requires it; second, the protection of the people’s right to select the president cannot make the president serve at the pleasure of Congress; and third, the due process rights of the president prevent nebulous, vague undefined “offenses” being the basis of punitive impeachment.
Indeed, this argument is far from new: the only Supreme Court Justices ever to argue on the Senate floor on impeachment agreed; the only active Judges to ever argue on the Senate floor on impeachment agreed; and Founding Fathers who debated impeachment on the Senate floor back to 1805 agreed.
The Text of the Constitution Limits Impeachable Offenses to Indictable Offenses
The Constitution only authorizes impeachment for three reasons: treason, bribery, and “other High Crimes and Misdemeanors” akin to treason or bribery. As the current impeachment charges do not even allege treason, bribery or comparable “other high crimes,” this impeachment of President Trump offends the Constitution.
This understanding of the Constitution is not new.
As Alan Dershowitz recently noted, past former Supreme Court Justices made the same argument on the Senate floor in past impeachments.
As you can read in the journals of past infamous impeachment trials, Founding Fathers, respected jurists, and legal scholars each argued near the very founding of our country: “[n}othing is impeachable that is not also indictable.” (Source: Hinds’ Precedents, Volume 3, Chapter 72, “The Impeachment and Trial of Samuel Chase,” published by the U.S. Government Publishing Office, found at this site: https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/html/GPO-HPREC-HINDS-V3-21.htm)
Equally, as Dershowitz commented, former Justice Benjamin R. Curtis concurred in the impeachment trial of Andrew Johnson. (The opening argument of former Supreme Court Justice Curtis can be found here: https://famous-trials.com/johnson/482-curtisopening).
Harvard law professor Nikolas Bowie has recognized the significance of this precedent, in his response to Laurence Tribe in Harvard Law Review. (https://harvardlawreview.org/wp-content/uploads/2018/12/vol132_Bowie.pdf).
Indeed, every judge or justice to take the floor of the Senate and argue about impeachment — for president or judges — has agreed since 1805: impeachment requires a crime.
First, in 1805, Supreme Court Justice Samuel Chase argued that “impeachment might be invoked only for indictable offenses.” As the journal of the proceeding itself admits, “counsel for Mr. Justice Chase argued elaborately that the power of impeachment applied only to indictable offenses.”
The counsel for Justice Chase included Judge Joseph Hopkinson, himself the astute and learned son of the famous signer of the Declaration of Independence, Francis Hopkinson.
Another fellow member of the Constitutional Convention also joined the defense of Justice Chase: Luther Martin, rightly identified as one of the “Founding Fathers” himself. Martin, Chase and Hopkinson all concurred that it would be shocking if any official could be “impeached and deprived of his office when he has done nothing which the laws of his country prohibited.”
Yet that is precisely what has occurred to President Trump.