Big H/T to Don Surber, who came up with the article that sketches out a fascinating and instructive historical analogy for the continuing constitutional hoax being perpetrated in the Imperial City on the Potomac, under the occupation of the New Army of the Potomac. We'll get to that shortly, but first I intend to quote a few passages from two other articles that address this hoax briefly but succinctly.
First of all, Jordan Davidson at The Federalist sketches out the most important element of the reply brief that Trump's attorneys have filed today--Trump Legal Team Decries Democrats’ ‘Outlandish’ Impeachment As Unconstitutional ‘Political Theater’. As we'll see, the lack of a legal or even a constitutional basis for this proceeding in the Senate plays into the historical analogy. Here is a passage toward the end of the article that sketches this out:
Trump’s team continued the 78-page brief by outlining how this operation, orchestrated by the Democrats who harbor “fevered hatred for Citizen Trump” and have “Trump Derangement Syndrome,” infringes on the former president’s right to freedom of speech and his life as a private citizen who no longer holds public office. ...
“The Article of Impeachment presented by the House is unconstitutional for a variety of reasons, any of which alone would be grounds for immediate dismissal,” the brief states. “Taken together, they demonstrate conclusively that indulging House Democrats hunger for this political theater is a danger to our Republic democracy and the rights that we hold dear.”
Last week, the Trump legal team formally responded to the impeachment article in a 14-page answer, arguing that the Senate has no constitutional grounds to try the former president and should acquit him. In the response, Trump’s attorneys said the article is null and void because the Republican is “no longer President.” The charge, they said, is based on legal principles that “run patently contrary to the plain language of the Constitution,” and since Trump cannot be removed from an office he no longer holds, the impeachment is “irrelevant to any matter before the Senate.”
Liberal law prof Jonathan Turley, who has been bending over backwards in addressing this hoax, seems to have finally had enough. The straw that broke the camel's back for Turley was the claim by Congressperson Jamie Raskin, D-MD, that Trump's refusal to testify could be cited by the Dem House managers as evidence of guilt. Turley unloads on Raskin and the other Dems (and a few RINOs), to the extent that the normally mild mannered Turley ever unloads--Impeaching Trump – House threatens to trash this core principle. Again, you'll see how this plays into the historical analogy:
Over the last four years, we have seen an alarming trend of law professors and legal experts discarding constitutional and due process commitments to support theories for the prosecution or impeachment of Donald Trump or his family.
Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process and fairness concerns. Even theories that have been clearly rejected by the Supreme Court have been claimed to be valid in columns. No principle seems inviolate when it stands in the way of a Trump prosecution.
Yet, the statement of House manager Rep. Jamie Raskin, D-Md., last week was breathtaking. A former law professor, Raskin declared that the decision of Trump not to testify in the Senate could be cited or used by House managers as an inference of his guilt – a statement that contradicts not just our constitutional principles but centuries of legal writing.
Presidents have historically not testified at impeachment trials. One reason is that, until now, only sitting presidents have been impeached and presidents balked at the prospect of being examined as head of the executive branch by the legislative branch. Moreover, it was likely viewed as undignified and frankly too risky. Indeed, most defense attorneys routinely discourage their clients from testifying in actual criminal cases because the risks outweigh any benefits. Finally, Trump is arguing that this trial is unconstitutional and thus he would be even less likely to depart from tradition and appear as a witness.
[Raskin's claim that Trump's silence can be used against him] conflicts with one of the most precious and revered principles in American law that a refusal to testify should not be used against an accused party.
At this point Turley also relates that the Dem House has done essentially nothing to lock in testimony of witnesses against Trump. Many of those witnesses have since spoken publicly. This simply goes to the clear fact of legal and constitutional lack of seriousness on the part of the Dems. They've done nothing to build a case--it's theater.
Turley continues, but ultimately concludes in scathing fashion:
This is not a political exercise. It is a constitutional exercise. These senators are undeniably politicians but they are also constitutional actors bound by oath to the standards and procedures laid out for impeachments. It would make this process a mockery if, in claiming to uphold constitutional values, members like Raskin destroy the very foundations of constitutional rights.
It is true that this is not a criminal trial. It is a constitutional trial. As such, the Senate should try an accused according to our highest traditions and values. That includes respecting the right to remain silent and not to have "inferences" drawn from the fact that (like prior presidents) Trump will not be present at the trial or give testimony.
This is not the first time that reason has been left a stranger in our age of rage. There appears no price too great to pay to impeach or prosecute Trump. Now, the House is arguing against one of the very touchstones of our constitutional system and legal experts are silent.
If everything is now politics, this trial is little more than a raw partisanship cloaked in constitutional pretense.
Now we come to the historical analogy that Don Surber pointed out this morning. The full discussion is found in an article at Taki's Magazine--“By What Lawful Authority?” The historical analogy is to the trial of King Charles I at the hands of an insurrectionary Parliament that was governed by fanatics who saw themselves as a law unto themselves. The King had been defeated through insurrection, and Trump was ousted as the result of patent illegalities in the recent election. Just as today, with DC under military occupation, in the 17th century Cromwell's New Model Army loomed in the background to the trial in Parliament. And, like Trump today, Charles Stuart contested Parliament's authority to hold such a trial:
In 1649, Charles I, King of England, Scotland, France, and Ireland, after years of quarreling over what were the powers of the Crown versus the powers of the elected and unelected houses of Parliament, was defeated on the field of battle by an army organized by Parliament and commanded by Olivier Cromwell, a religious fanatic who wished to remake the world into a Reformationist utopia—by force if necessary. The King was arrested and brought to London under the charge of having incited and committed treason. There would be a trial.
Charles Stuart ... sensed that this was not a judicial exercise but rather a theatrical piece designed for public consumption; ... When he was finally asked how he wished to answer the charges, the King knew his moment had come. “I would know by what power I am called hither, by what lawful authority?” he calmly replied.
And there it was, the central question. The judges, called “Commissioners,” had expected the question, but they still held their breath when Charles spoke it aloud. They knew that he knew that there was no law permitting these proceedings. ... They responded that they were empowered by Parliament and that the King was answerable to Parliament. It was not true and still isn’t.
For each of the following three days the King refused to acknowledge the legality of the “Court”; he termed it “power without law.” ...
... Donald Trump is not President of the United States, he has already left office, he is a private citizen. There is no law that empowers Congress to prosecute a private citizen under the impeachment clause; though it may dearly wish that it existed, it may wish what it wishes, but it does not exist. They might possess evidence, they may even have a case, but they do not have the legal basis for the procedure. ... The added fact that the Chief Justice of the Supreme Court of the United States has refused to preside over the trial as did the three Chief Justices of the Common Law courts of England in Charles’ time is of no consequence. It will happen, they are determined to do it, regardless of the fact that they have no legal right. ... They will make it up as they go along. Their hatred of the individual in question is so great that they intend to pursue him into private life. It is, on its face, what Churchill termed a “monstrous illegality.”
And there is a greater, unspoken purpose for this trial.
It is to send a message, the same message that Parliament sent out with the condemnation and execution of Charles, and that message is that there is a new power in the land, namely: “If we can do this to the King, we can do this to you.” It sent then, and sends now, new instructions of obedience to the general populace: “We are in control, you are not; abide in your status.”
Charles Stuart knew that he was a condemned man the minute he walked into Westminster Hall and sat before his “Judges.” But he seized the essence of the issue at hand when he declared: “For if power without law may make laws, may alter fundamental laws of the kingdom I do not know what subject he is in England that can be sure of his life or anything he calls his own.”
I think it's no exaggeration to state that the same issue is before us. We see every day a coordinated effort of the ideological forces of the Left--in government, in the traditional media, and in the new digital social media--to enforce a prohibition of all questioning with regard to how they came to acquire their power. To do so is now termed "sedition", and attempts are even underway to enforce this tyranny against members of the opposition political party. Questioning has now become a political crime.
For an historical analogy closer to our own time, I recommend Daniel Greefield's provocative article: The Reichstag Fire of the Democrats. While it is, of course, perfectly true that historical analogies need not be controlling for future events, there is danger in failing to learn from the lessons of history. It's natural to try to persuade ourselves, This time will be different. But best to be prepared. Knowledge of history and the lessons that we can derive from what history reveals of human nature in the field of political battle is a highly recommended first step.