“When you are administering justice and you find yourself feeling good about the punishment you are about to hand out to a soldier, stop. You are about to do something horribly wrong.” – Former Delegate Scott Lingamfelter [1], quoting a military legal instructor of his from 1992
“Facts don’t care about your feelings.” – Ben Shapiro
The second Senate trial of Donald Trump began Tuesday. Colonel Lingamfelter (retired) presented his own argument [1] for dismissal of the charge against Trump. Said argument quickly joined the problematic ranks for those who read it.
What began as a discussion of the power to mete justice and the responsibility that comes with it stayed firmly on the rails for the first three paragraphs. The trouble begins in paragraph four. To wit:
At this writing, the eyes of the nation are on the U.S. Senate as it pursues a second impeachment trial of—now—former President Trump. The first—only a year ago—was based on rather tenuous evidence, preceded by an investigation in the House of Representatives that made a hash of what would be considered due process, the ordered manner of justice where defendants have rights, and the burden of proof is on the accusers.
First, the notion that the evidence was “tenuous” would – or should – be a surprise to even a lay person who examined it. The rough transcript of the July 25 call was in black and white for all to see, released by the defendant himself (NBC [2]). It’s as if Nixon released the July 1972 tapes and then tried to declare them evidence of his innocence. At the moment Trump incriminated himself, the impeachment inquiry had just been announced.
As for due process and the rights of the defendant, the House Judiciary committee invited Trump’s lawyers to their hearings on the impeachment articles; it was Trump and his legal team that chose their absence (NBC [2]). Even without his lawyers, Trump had an ample number of advocates within the committee membership itself. For all of Devin Nunes and Jim Jordan’s many faults, both were far better advocates for Trump than what the Senate floor saw yesterday. Finally, regarding the “burden of proof,” surely Lingamfelter knows that such a thing is not a manner for investigation but rather for the trial itself.
As bad as all that was, the next paragraph was decidedly worse:
Now the Senate is trying a former president, which is without historical or legal precedent. The impeachment article in the Constitution reserves that procedure to “remove” a sitting president from office.
Both of these assertions are flatly wrong. Not only can the Senate try a former executive branch official, it actually has tried one [3] – former Secretary of War William Belknap.
On March 2, 1876, just minutes before the House of Representatives was scheduled to vote on articles of impeachment, Belknap raced to the White House, handed Grant his resignation, and burst into tears.
This failed to stop the House. Later that day, members voted unanimously to send the Senate five articles of impeachment, charging Belknap with “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
The Senate convened its trial in early April, with Belknap present, after agreeing that it retained impeachment jurisdiction over former government officials.
Indeed, the House impeached Belknap after he left office, which was not the case with Trump. One could argue that as a distinction without a difference, but even so, Senate precedent for trying a former official does exist.
The second assertion is even worse, as it flatly contradicts Article 1, Section 3, of the Constitution [4] itself (emphasis added).
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Lingamfelter’s penultimate paragraph includes the quote I cited to start this post. It is certainly worthy advice for any jurist – up to a point. Empathy for a defendant is a worthy attribute, unless it gets in the way of the truth. Moreover, one could argue that the axiom applies not to restricting oneself from action but rather to put one’s feelings aside – whatever they may be – and ensure one is examining the evidence objectively.
Facts don’t care about how bad you feel.
They don’t care about how good you feel either.