Article I, Section 9, paragraph 3

Bill of Attainder

A bill of attainder is essentially a trial conducted by the legislative branch. The Constitution prohibits such acts of the Legislative Branch against any citizen. Impeachment is a legislative process to remove an office holder.

The moment President Trump leaves office, he is no longer subject to trial by the Senate, regardless of their intent in doing so.

Members of Congress take an oath to defend the Constitution, would it be too much to ask them to read it?

47 thoughts on “Article I, Section 9, paragraph 3

  1. RE: “Members of Congress take an oath to defend the Constitution, would it be too much to ask them to read it?”

    Yes, obviously, it is too much to expect.

    I suppose there’s an argument on technicality that an impeachment trial begun prior to the end of a term of office can be completed after the term without becoming a bill of attainder. I’d call that an abuse of power, but such abuses today are the norm.

    On the other hand, perhaps Trump could say his term hasn’t officially ended so long as his impeachment trial is ongoing.

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    1. A Bill of Attainder is effectively a trial by the legislature. That is why Dershowitz raised the issue.

      The link you provide does not even address the issue.

      But the moment Trump is again a private citizen, any trial or penalty imposed by the legislative branch is a Bill of Attainder.

      And that is explicitly prohibited.

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      1. “A Bill of Attainder is effectively a trial by the legislature.”

        No, a Bill of Attainder is not a trial. Did you read your own link?
        “Definition: A legislative act that singles out an individual or group for punishment without a trial.”

        A Bill of Attainder is a legislative verdict without a trial and without any form of due process. There is no “issue” to address. This line of argument is nonsense kind of like the other quasi-legal attempts to protect Trump.

        Of course, the Congress should not be in the business of conducting trials. It is a separation of powers thing. But, the Constitution makes an exception for high office holders who have been impeached. The precedents are there – leaving office does not end the process.

        You are constantly accusing me of deferring to authority, but Dershowitz? LOL!

        Liked by 2 people

  2. Impeachment is not a criminal trial. It is the relief offered by the Constitution to remove an office holder who is deemed unfit, abused his power, unable to administer his office along with the more prescribed treason and bribery.

    There is no penalty, fine, prison, probation involved. Just removal from office. Or put another way, there is no punishment per se that the founders found to be an abusive tool by legislatures in Merry Old England.

    If punishment were to be the call, then trying the ex-president for sedition, incitement, abuse of office, extortion, threats to state officials after he leaves might be the route.

    I think the strategy, such as it is, is to allow a second vote in the Senate, after conviction, that would prevent Trump from holding public office in the future. And that is not just a partisan issue. There are plenty of Republicans that would like to get Trump out of their lives.

    Liked by 2 people

    1. If you want to try Trump for inciting riot after he leaves office, then go for it. But before a court with all the rules in place.

      You can’t have it both ways, a political trial before the Senate, is a Bill of Attainder.

      In a criminal trial, it is before the judicial branch, with due process, the presumption of innocense and the requirement of proof beyond doubt of criminal intent. If you want to make fools of yourselves trying that, have at it.

      But you cannot have a party line trial by the Senate of a private citizen.

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      1. You misunderstood. If we have to try Trump for his crimes, then he needs to have his day in court, not the Senate.

        But conviction after impeachment is another story. Essentially the results just say that the impeachment from the House was valid.

        It won’t be party line, however. There are more than a few Republican senators that would vote to convict.

        The more the investigations continue on the insurrection attempt, the worse it looks for both the participants and the president. ISIS is proud because we are nurturing our own terrorist branch of the right wing.

        Liked by 3 people

        1. It’s still a political act.

          We have separation of powers for a good reason.

          If you could impeach a private citizen, what would stop Congress from impeaching a candidate BEFORE he is elected as a preemptive strike?

          I know you don’t like the barriers the Constitution places in the way of your political vengeance, but removing those barriers because you so deeply hate Trump creates much greater problems.

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          1. We did not impeach a private citizen. He was impeached by the House before he left office.

            I think you are misinterpreting the very statutes you are relying on.

            Liked by 2 people

          2. Political vengeance?

            Maybe you missed it, but Trump personally incited the assault on the Congress and the Rule of Law that resulted in millions of dollars in damage, dozens of police injured and five dead. If we are going to preserve our Constitutional order there MUST be serious consequences for every jackass involved. And most especially the jackass who caused it all to go down.

            A major reason to handle this through an impeachment trial is that it is NOT a criminal proceeding. It does not matter whether he is malicious, simply stupid or deranged. There is no need to prove that he is of sound mind or that he intended for the mayhem to unfold the way it did. Did his conduct in office lead to the seditious violence? That is the only question. The impeachment says it did. Now he DESERVES a trial and no Senator deserves to be able to duck going on record with a vote on the verdict.

            Liked by 1 person

          3. Clearly “misinterpreting”. I have a pretty good handle on the legal opinions regarding the issue and it appears like another attempt by Dershowitz to be somehow relevant and give hope to the hopeless.

            Liked by 2 people

      2. “If you want to try Trump for inciting riot after he leaves office, then go for it.”

        And if he issues himself a pardon before he leaves?

        This is not a state issue with regard to the incitement charge. It is a federal charge, and any pardon issued by POTUS is related to federal charges only.

        Kind of funny how you are standing against the idea of personal responsibility, seeing as you tout it for the rest of the citizenry. But you don’t believe he incited the insurrection. His followers who have been arrested have said repeatedly they were doing it because T****ordered them to do so. HMMMM.

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        1. But Trump did not order them to do so,

          People on both sides hear Trump’s words very differently from what he actually says.

          But what has become very clear is that a small number of people went to DC with the prior intent to do violence. They prepared for weeks. Trump’s speech on Jan 6 could not have incited them in December.

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          1. ” Trump’s speech on Jan 6 could not have incited them in December.”

            T**** started the incitement prior to Election day and continued the myth of fraud LONG AFTER the election had been decided.

            The article of impeachment covers that. You ignore it and try to give a pass to T****.
            Words like “fight like hell” and other words from the speech belie you version of things. He wanted to overturn the results of the election through any means necessary. One his legal options ran out, he turned to his “mob” to give GOP representatives a “spine” to do his bidding. An extra-judicial means to keep him power. His too little too late speech a week later does not exonerate him from the fact that he DID incite the crowd to violence against our democratic process and our seat of Government.

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          2. Ever been to a high school pep rally?

            Are the cheerleader’s exhortations to Fight Fight Fight an incitement to violence?

            His later comments urging people to go home are not the issue. His speech on the 6th is the one claimed to be an incitement to insurrection, and it is clear the insurrection was planned long before that.

            Cause must precede effect.

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          3. Wow! Your desperation is so thick it can be cut with a knife. Cheerleaders? Now T**** is just a cheerleader?

            You cannot ignore the words of those who told police and other law enforcement that they wee there on the orders of the President. Yet you do, and that is fine. It may have been planned in advance, but the words PRIOR to Jan 6 are the reason for the planning.

            Liked by 1 person

          4. I’m not the one getting desperate.

            The point is that people often use the word ‘fight’ when they don’t intend violence.

            Like “Fight for your right to party”

            The Articles of impeachment specifically reference the statements made on Jan 6.

            The planning to breach the capitol was done prior to that time, and thus cannot have incited those acts.

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        2. “The planning to breach the capitol was done prior to that time, and thus cannot have incited those acts.”

          Such Bullshit! You ought to be ashamed. Or at least embarrassed. If you are capable of either.

          Trump and his enablers have been inciting this riot since before he became President. He accelerated his incitement exponentially after he lost the election decisively. The people who came prepared for violence had already been incited to violence. Duh!

          Your whole argument against incitement is based on a “fact” that is not only NOT in evidence, it is totally laughable. And that necessary “fact” for this lame argument is that EVERYONE who joined in the violence had planned to do so and were not stirred by Trump’s oration. One defense that is coming out by the invaders is that they were “told” to do what they did by the President.

          Yes “fight” is often used in high school cheers. But NOT when combined with claims that you are losing your country and will never get it back. Then its meaning is not figurative, it is literal. The following montage sets the stage for Trump’s incitement and his use of the word “fight.”

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          1. OK, I’ll try to explain it more clearly.

            Regardless of any previous rhetoric, the Articles of Impeachment specifically cite the statements made by Trump on Jan 6.

            The planning for the breach was done at least a week prior to that speech.

            Thus, the breach could not have been incited by those words.

            If the House wanted to impeach Trump based on prior statements, then it should not have based the articles on the Jan 6 speech.

            Cause must precede effect.

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          2. “OK, I’ll try to explain it more clearly.”

            LOL!

            Patronizing condescension coming from someone with your intellectual chops is milk out the nose funny.

            Your “argument” against the incitement impeachment is rubbish.

            1. The article of impeachment does not reference ONLY that one rabble rousing speech. Can’t you read? Or do you purposely isolate yourself from relevant facts? Here, try again . . .

            “In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.”

            and

            “President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election”

            1. The fact that some people were prepared for violence when they came to the rally does not equate with their not being incited to actually carry it out. Duh!

            2. Many of the people, in fact probably most, who illegally entered the Capitol have not been traced back to specific seditious planning. They acted in the heat of the moment after hearing the lies at the “Save America” rally. At least, that is what they are saying.

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      1. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

        “… except in cases of impeactment”. Now there are two ways to interpret that exception.
        The first is that he cannot interfere with an impeachment process with a pardon.
        The other, equally semantically correct, is that his “power to grant” is removed in the event of his own impeachment(s).

        Strict textualist, I am. Until tried by the Senate and the impeachment is overturned, he cannot grant a reprieve or pardon.

        Liked by 2 people

      2. “Impeachment is a political accusation.”
        Uh, yes and no. It is political but it is a bit weightier than an “accusation.” A better analogy is an “indictment” but really, there is no analogy from criminal proceedings. It is a special process reserved for holders of high public trust. Part of the checks and balances built into our system.

        Yes, it is political and without a trial and conviction there are no consequences other than political. It is worth noting, however, that this particular Presidential impeachment is the first in our history to have bi-partisan support. That adds quite a bit to its “weight.” IMHO.

        Liked by 3 people

      3. It’s more like a personnel matter. And, as in any personnel matter, it would not be unreasonable to relieve the subject of some certain, or all, responsibilities and authorities, i.e., the authority to cancel the investgation or hearing.

        Liked by 1 person

  3. For those who can’t access the opinions I have also given the pertinent arguments from the two Constitutional experts.

    Ex Federal Judge Luttig holds the position that Trump cannot be tried after leaving office, even if impeached while president.

    https://www.washingtonpost.com/opinions/2021/01/12/once-trump-leaves-office-senate-cant-hold-an-impeachment-trial/

    “Which is to say that the Senate’s only power under the Constitution is to convict — or not — an incumbent president.”

    Luttig goes on to say the Constitution is clear, yet it will take a SCOTUS judgement to confirm. IMO, then, the Constitution is not so clear.

    “In the end, though, only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him.

    Lawrence Tribe offers the opposing opinion:

    https://www.washingtonpost.com/opinions/2021/01/13/senate-impeachment-trial-constitutional-after-trump-leaves/

    There are precedents for such actions.

    “The question was first raised during the attempted 1797 impeachment of Sen. William Blount. One of the lead House prosecutors, Rep. James Bayard, and Blount’s lawyer agreed that a civil officer could not escape impeachment through resignation. Former president John Quincy Adams, while serving as a member of Congress many years later, concurred by declaring that “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”

    Likewise, in 1876, Secretary of War William Belknap resigned minutes before the House was set to impeach him; the House still transmitted five articles of impeachment to the Senate. At Belknap’s trial, the Senate voted 37 to 29 that he was “amenable to trial by impeachment …notwithstanding his resignation of said office.” And the House and Senate rules have both long permitted the impeachment and trial of former officers for abuses committed while holding office.”

    It seems to me that the bottom line is he can be tried after leaving office after being impeached while in office.

    IMHO

    Liked by 2 people

    1. The Constitution is not in the least bit clear on this question but the precedents are.

      That lack of clarity in the Constitution does not stop some people from making dangerous accusations that the Democrats are ignoring the Constitution and failing in their duty to uphold it. That is their go to mode even as they double down on their support of the seditious bastard who caused the Congress to be physically attacked and people killed. Their hypocrisy would be funny if it were not so dangerous.

      Liked by 3 people

  4. Read it. They thought about Trump before Trump’s great-great-great grandfather was a twinkle in his father’s eye.

    https://avalon.law.yale.edu/18th_century/debates_720.asp

    Mr. MADISON thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

    Liked by 1 person

    1. Madison makes a good argument for having a method for removing an Executive from office in limited circumstances, but what does that have to do with the legislative trial of a private citizen, which is specifically prohibited by the Constitution?(Bill of Attainder)

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      1. Again and again you completely and deliberately confuse the Constitutional mandated TRIAL of an impeached office holder with a Bill of Attainder. They are completely different but your deliberate ignoring of the differences provides yet another example of how Trumpkins think that their “alternative facts” are just as good as real ones.

        Here are three relevant FACTS.

        1.The ESSENCE of a Bill of Attainder is that it does not involve a TRIAL but is a legislative decree finding someone guilty of something.
        2. An impeachment TRIAL in the Senate is REQUIRED by the Constitution following an Impeachment of an office holder by the House.
        3. Historically, there have been three significant cases of the TRIAL being held after the impeached individual had left office.

        The “argument” that conducting the trial after Trump leaves office is unconstitutional is stupid, partisan bullshit. You should not have parroted it without doing a little research and applying a little thought.

        Liked by 1 person

        1. In reverse order

          None of the prior examples were challenged at the time, and the Constitutionality has not been tested.

          The Senate is required to settle the issue if it has not already been settled.

          A legislative trial of a private citizen is exactly what a Bill of Attainder is. Impeachment can only be tried when the citizen holds office.

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          1. In reverse order.

            A Bill of Attainder is a legislative verdict. Possibly for a non-existent crime. It is NOT a trial. Your own link earlier made that VERY clear. As does the history of what the Founders were thinking about when Bills of Attainder were banned. You do not get to make stuff up, no matter how useful for the defense of Trump and his enablers.

            The Constitution calls for a trial following an Impeachment. Not for the Senate to “settle the issue” whatever that means. There could have been a trial and a vote this week. The failure of the Republicans to uphold the Constitution cannot be allowed to subvert it.

            The precedents were not contested because there was no Constitutional issue to test. The Constitution was followed. A trial followed the impeachment. There was no Bill of Attainder. And, where the Constitution is silent, precedents matter.

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    1. Actually, disqualifying Trump from running in 2024 would be a wonderful gift to the GOP. Though I doubt he could get the nomination, he could split the party with his ego.

      But it still isn’t legal after he is out of office.

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      1. …”disqualifying Trump from running in 2024 would be a wonderful gift to the GOP”…

        Pretty sure that would be McConnell’s goal.

        And perhaps it would fall to SCOTUS to decide on whether the trial is Constitutionally legal. We shall see.

        Like

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