Jump to content

Trump impeachment trial – Here are four legal problems House Democrats have to face

Recommended Posts

Jenna Ellis: Trump impeachment trial – Here are four legal problems House Democrats have to face

Robert Ray: Impeachment articles are 'constitutionally defective'

Robert Ray, Counsel to President Trump, provides insight to Trump's defense strategy at his Senate impeachment trial

PROGRAMMING ALERT: Watch author Jenna Ellis talk about this topic and much more on "Hannity" on January 20 on Fox News Channel at 9 pm ET.

President Trump’s defense counsel has filed their legal brief on impeachment. It lays out a clear argument explaining why the Senate constitutionally cannot even consider the two flimsy articles of impeachment. The Senate, which has the sole power to try all impeachments, must acquit President Trump and outright dismiss this attempt to undermine the Constitution.

Here are the four legal problems the president’s brief reveals that House Democrats have:

1. The Substance Problem — The Articles don’t identify any impeachable offense or even any crime

Article II, Section 4 of the U.S. Constitution clearly and intentionally limits impeachment to instances of “treason, bribery, or other high crimes and misdemeanors.” The two articles of impeachment do not allege any conduct that fits within that constitutional definition, or even any crime whatsoever. “Abuse of power” and “obstruction of Congress” are vague allegations and a newly invented theory from the Democrats — not an allegation that is a violation of any actual law.


Trump’s brief notes that every prior presidential impeachment in U.S. history has been based on allegations of violations of existing law (specifically, criminal law). For example, though Clinton was ultimately not convicted in the Senate of an impeachable offense, that impeachment still alleged violations of existing federal criminal law — felonies. “Abuse of power” and “obstruction of Congress” are not criminal violations, just catchy phrasing that the Democrats are using to create the public perception of wrongdoing.

2. The Process Problem — The Impeachment inquiry was irredeemably flawed

House Democrats violated all precedent and due process while conducting their impeachment inquiry and their goal was never to ascertain the truth. Certain constitutional protections, including due process, are afforded to every defendant and the context of an impeachment and a trial is no different legally in terms of constitutional protections.

It’s not up to the Senate to now try to help the House’s flawed and illegal inquiry by entertaining witnesses or curing a defective process.

While the punishment for conviction in the context of a presidential impeachment is removal from office (unlike a regular criminal trial where the sentence structure is different), the fact that the penalty is unique for impeachment does not divest or remove any constitutional protections from a sitting president.

It’s not up to the Senate to now try to help the House’s flawed and illegal inquiry by entertaining witnesses or curing a defective process. If the House Democrats really wanted to ascertain the truth and fact-gather, they should have allowed minority witnesses and the president’s legal team to participate during the inquiry and not simply tried to meet their internal deadline for impeachment, and conducted their inquiry fairly.

Malicious prosecution is seeking an outcome of conviction regardless of what the evidence shows and railroading the process. That’s exactly what the House Democrats are doing.

3. The Evidence Problem — House Democrats have no evidence to support their claims

The evidence in the House record shows President Trump didn’t condition security assistance or a presidential meeting on announcement of any investigations. Further, witnesses only provided their beliefs, interpretation, and speculation, and most were not even directly knowledgable of the July 25 call. The two people actually on the call—President Trump and Ukraine President Zelensky—both have affirmed there was no pressure or condition. In fact, Ukraine wasn’t even aware the aid was temporarily held, which was entirely unrelated to the phone call.

Article II vests all executive authority in the president. This means that the Constitution gives the president sole authority to enforce all executive policy decisions, including foreign policy. While subordinates or Congress may or may not agree with these decisions, it is the president’s prerogative. The reason Trump’s legal team continues to refer to “overturning the 2016 election” is because the American people voted to elect President Trump, which means we, the voters, selected him to have and exercise the Constitution’s presidential executive authority.

For the House to second-guess the will of the American people and impeach Trump for a policy decision they disagree with means they are trying to second-guess our choice for president.

4. The Structure Problem — The Articles are structurally deficient and can only result in acquittal. 

In law, there is a prohibition against a charge that is “duplicitous”—that is, if it charges two or more acts or offenses in the same count.

For example, a complaint against a defendant cannot charge only one count of speeding but allege the defendant sped in January and then again in July. Each of those two instances is separate and the evidence for each speeding allegation would have to be proven on its own.


Otherwise, half the jury might be convinced of the evidence for the January speeding and vote for conviction, and the other half convinced of the June instance of speeding. Thus, the jury is not truly unanimous in its verdict. Tried separately, the defendant would be acquitted of both alleged speeding instances.

More from Opinion

Here, the House Democrats are charging multiple different acts as possible grounds for conviction, and Constitution requires two-thirds of Senators present to agree on the specific basis for conviction. So a vote from the Senate on the articles as written cannot ensure that a two-thirds majority agreed on one particular ground for conviction.

This is a more technical legal argument, but a very important one. It shows yet again how the House completely threw out all prior established law and precedent in their impeachment. The legal remedy for such a fatal error is granting a motion to dismiss, which would be entirely proper on this argument alone.

Since the initial poorly orchestrated press conference on September 24, Democrats have been relying on optics and a partisan majority in the House to guarantee their desired outcome. Faced now with having to actually prove their case using law and fact, not polling and focus groups, the Democrats are learning why our American system requires due process and justice—much more difficult than trying a case in the court of public opinion.

As the president’s legal team argued in their answer filed Saturday, this entire sham is setting a dangerous precedent.


If allowed to proceed beyond outright dismissal and acquittal, any future U.S. president would be subject to an opposition party’s majority whim in the House to impeach for literally any reason it manufactures.

No president constitutionally should have to answer to Congress in the context of an impeachment trial for perfectly valid executive decisions. We have one chief executive, not 535.



Link to comment
Share on other sites

2 minutes ago, slideman said:

Trump tried to extort dirt on his opponent from a foreign country by withholding military aid. He is convicted out of his own mouth.

The transcript proves you wrong.  The transcript is the only true document.  Everything else is hearsay, and garbage.

Link to comment
Share on other sites

8 minutes ago, slideman said:

Yes the transcript where he said we'd like you to do us a favor though. He is convicted out of his own mouth.


Did he say, we would like you to do us a favor, and if you don't we are going to......        no.  No quid pro quo.  No preasure.  Just a "will you do us a favor'.  Every president since Washington has asked foreign countries  "will you do us a favor".  So why does Trump get impeached for his?  Because they hate him so bad, they will twist anything to look bad.

They just chose a clean phone call to do it.


You know why they chose a clean phone call, because someone leaked that Trump just screwed the ukraine, not thinking very brightly.  Probably Colonel Vindman to the whistleblower.

Nan Pelusa ran right to the mic and announced the starting of impeachment before she ever heard the phone call.  


Then Trump did what nobody ever thought he would.  He release the transcript, and that should have ended the story, but the dems had already crossed the line and were up to their eyeballs in gettin him, and it will backfire badly for them.

Link to comment
Share on other sites

Join the conversation

You are posting as a guest. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


  • Create New...