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Saturday, October 26, 2019

An Impeachment Trial as Original Jurisdiction

Yesterday, one of the President's advisors (a deputy of John Bolton) filed suit asking a federal court to determine if he must obey a House subpoena in the impeachment inquiry if the President is telling him not to testify. The suit is a good way of avoiding a decision on testifying that is bound to anger someone. But the case also illustrates a unique aspect of impeachment trials. 

Long before this suit is resolved by the courts, the House will send impeachment articles to the Senate. At that point, the issue will change into: "Must someone subpoenaed by the Senate for an impeachment trial testify when the President tells him not to testify?" The House impeachment managers or the President's lawyers, though, can raise this question directly with the Chief Justice as presiding officer. Thus, the High Court of impeachment in the Senate functions as a form of original jurisdiction.

Three implications flow from this observation. First, delay becomes impossible. Filing lawsuits to drag things out in the courts won't work when the Chief Justice has original jurisdiction over impeachment trial matters. Second, the Associate Justices are totally cut out of the process. Only the Chief Justice's views matter. Third, there are no lower courts to sift arguments and help the Chief Justice as is typically true for constitutional issues. He is on his own, though he can seek the advice of the Senate parliamentarian.

The bottom line, once again, is that the Chief Justice will wield considerable power over the upcoming trial, and will be largely exercising his own discretion. 

Posted by Gerard Magliocca on October 26, 2019 at 03:35 PM | Permalink


By the way, one may reach the suit ( probably the one described in the post, no details here in the post)Here ( article and links therein):


Posted by: El roam | Oct 27, 2019 12:22:56 PM

Just correcting the last paragraph of my comment:

Should be " acting as petit jury " and not as written "grand jury".


Posted by: El roam | Oct 26, 2019 5:12:16 PM

This is not a court. Not associated with any court. Neither federal nor state one. So, original jurisdiction has nothing almost to do here. Once again citing from Nixon v. US ( the judge at the time, not the president):

The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179,186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.

End of quotation:

So, court, made of small number of judges, can't according to the framer, reach such " awful discretion " or decision. The best way to look at it, is:

To consider the House as sort of "grand jury" ( investigating and reaching " impeachment articles " or, whether to indict and the legal basis for it ) while the Senate, as "petit jury", finally convicting or not.

It is a sort of popular or people or sovereign special tribunal,made of large number of representatives of the people, acting as grand jury. Mangers run the show, and the chief justice, presides and inspect the whole show. That's it.


Posted by: El roam | Oct 26, 2019 5:04:11 PM

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