One more time: circa
1797-1799, Senator Blount did not resign. He was expelled. He was impeached by
the House. The Senate dismissed the articles of impeachment. In the Senate impeachment
trial proceedings, there were ZERO witnesses. The dismissal was akin to a
Federal Rules of Civil Procedure 12(b)(1) dismissal (for lack of jurisdiction)—where a court can grant
dismissal absent witnesses. It is also akin to a 12(b)(6) dismissal (for failure to state a cognizable claim) and a Rule 56
summary judgment dismissal (where there is no dispute as to a material fact). In all these situations, a court of record can dismiss absent witnesses
heard in open court.
A chart was
circulated widely across the internet and Twitter-law suggesting that all
Senate impeachment trials have had witnesses. It left off Blount: the first impeachment and a much studied impeachment. Hard
to miss. Once criticized: the chart was defended on the grounds that Blount had
resigned. That was not true.
Then it was defended
on the grounds that the dismissal in Blount
was jurisdictional. But both 12(b)(1) dismissals for absence of
jurisdiction and 12(b)(6) dismissals for failure to state a claim are done
absent witnesses. So the “jurisdictional” exception made no sense. Trump’s
argument was, in part, that what he did was entirely correct, ethical, legal, and constitutional. That is: it was not a
constitutional violation. Such a defense is akin to a 12(b)(6) dismissal. That’s akin to Blount.
Eventually, a new
chart came out—it included Blount and
a few other impeachments which had been left off the first chart—these other Senate
impeachment trials involved resignations and so no witnesses were involved in
those proceedings.
If one argues that
the allegations in the articles of impeachment are not constitutional
violations, then that is a traditional question of law. Witnesses are not
necessary because the factual allegations are accepted as true for the purpose
of the motion. The suggestion by those arguing for witnesses was that a motion
to dismiss based on defective impeachment articles is a merits matter which
requires witnesses.
Those arguing for
witnesses cite no law or precedent for their novel claim. Article III courts
dismiss on 12(b)(6) and summary judgment grounds all the time. And do so absent
witnesses heard in open court. Everyone knows this.
I am not saying that
Senators in the exercise of their judgment and discretion are bound to
analogize their position to judicial procedure from courts of record—including
federal courts.
What I am saying is
that those arguing that once you get past jurisdiction (per Blount), the House managers are entitled
to live witnesses as a matter of right is a very strange claim, unsupported by
authority, and contrary to the nearest procedural analogues from courts of
record.
Those arguing for witnesses
next fall back ... was “OK, so the Senate, as a matter of law, could reject
having witnesses, but so what?—in the vast majority of prior Senate impeachment
trials the Senate heard witnesses, so why not do so here?”
One can only cry
when hearing law professors launch such an argument. Say a new federal judge
reaches the bench. He hears 15 civil cases, and they all survive motions to
dismiss and motions for summary judgment. In each of these 15 cases there are
witnesses and a jury decision. Now you come into court before that judge
representing a new claimant in this judge’s 16th case. Can you argue—“your
honor, my claim survived 12(b)(1) challenges . . . so let’s skip a decision on
the defendant’s 12(b)(6) arguments and any opportunity for summary judgment . .
. why . . . because in all your prior 15 cases you heard from live witnesses in
open court.” The judge will simply say that your argument is not a valid argument. “In other
words, those cases under the rules were strong enough to survive challenges at
the initial stage and so those plaintiffs were entitled to witnesses. But for
you to get witnesses in your case, you must survive initial challenges to your
claim. Every case is assessed individually under the rules.”
The fact that most
pre-Trump impeachments had witnesses is a way of saying the Senate agreed that
the House did its job. Whether the House did its job in the Trump proceedings
is a matter for this Senate on the facts presented. You cannot decide that by tabulating prior cases.
Everyone knows this.
Yet, here, we see a
concerted effort to make an entirely new system of justice for one person.
Trump. And the effort failed. And if you want evidence of what I have written
here . . . just look at the misrepresentations about Blount, the fake chart, and the unwillingness of those who erred to
concede error.
