Archbishop Laud blesses Lord Strafford as he is led to execution. Thomas Wentworth, 1st Earl of Strafford, was executed on Tower Hill on 12 May 1641, following the passing of a Bill of Attainder by Parliament, which was reluctantly agreed to by Charles I. (Photo by Culture Club/Getty Images
Artillery Row

Beware the bill of attainder

Christopher Silvester explains how English history could have an important part to play in Trump’s impeachment

Before the Democrats can achieve their goal and ban Trump from ever holding public office again (and thus defang the Deplorables), they will have to clamber over a couple of procedural hurdles.

Bills of attainder were used to prosecute rebels and those who had fallen out of favour with the monarch

The first of these will be for his accusers to persuade their fellow Senators that they have the jurisdiction to impeach a president who is no longer in office, since some legal scholars argue that the U.S. Constitution says impeachment should not apply in such circumstances. That at least is the opinion of Professor Alan Dershowitz. It’s one of those instances where the import of the law hangs on a verbal conjunction, since the Constitution requires that “the president… shall be removed from office on impeachment… and conviction” and further that “judgment in cases of impeachment shall not extend further than to removal and disqualification”. Note that it does not say “removal or disqualification”. Impeachment is for removal – not for the purpose of punishing a man who is no longer in office.

Permitting a legislature, as opposed to a court of law, to prosecute a citizen was a British habit that the American revolutionaries and framers of the Constitution chose to repudiate. Bills of attainder (the name for punishment of individuals by legislative means) were a much-reviled feature of our nation’s history up until the end of the late-eighteenth century; the last time a public bill was used to attaint a citizen was in 1798 when Lord Edward Fitzgerald was prosecuted for leading the Irish Rebellion. He died from an infected wound that had been incurred during his arrest.

Bills of attainder were used to prosecute rebels and those who had fallen out of favour with the monarch, such as George, Duke of Clarence, who, according to Shakespeare’s Richard III, was stabbed and then drowned in a butt of Malmsey wine; Thomas Cromwell; two of Henry VIII’s wives (Anne Boleyn and Catherine Howard); Charles I’s cat-paws Strafford and Laud; the Duke of Monmouth; and those deemed to have been disloyal to James II in Ireland before he was defeated at the Battle of the Boyne.

American revolutionaries used bills of attainder to prosecute those who remained loyal to George III

Despite their hatred of all things monarchical, including legislatures that were suborned or toadying, the American revolutionaries in some of the Thirteen Colonies used bills of attainder to prosecute Tories, as those who remained loyal to George III were called. Hence the squeamishness of the Framers of the U. S. Constitution, who forbade punishments including the death penalty, banishment, and the confiscation of property. Following the Civil War, the Supreme Court decided that a Missouri law disqualifying former supporters of the Confederacy from holding any public or private office amounted to a bill of attainder – a punishment of individuals. Then again, in the age of FDR, an attempt to pay no salary or compensation to federal employees who were suspected of subversive activity was deemed to be an unconstitutional bill of attainder by the Supreme Court. Similarly, the same Supreme Court ruling was used to strike the 1947 Taft-Hartley Act barring a member or ex-member of the Communist Party from serving as an officer or employee of a labour union.

The defining modern ruling concerned President Nixon post-Watergate. In 1974, Congress voted to confiscate former President Nixon’s presidential papers to ensure that they were not destroyed and – once they had been redacted for reasons of national security – were available to the public. In 1977, the Supreme Court decided that the law should stand because it was different from those punishments “traditionally judged to be prohibited by the Bill of Attainder Clause,” such as death, banishment, punitive confiscation of property, and a bar to employment; because it had “a legitimately nonpunitive function, purpose, and structure”; and because the congressional record did not evince “a congressional intent to punish”.

Steve Bannon’s War Room: Pandemic podcast is pushing the line that a Senate impeachment trial will give Trump the opportunity to lay out the case for his claim that the election was stolen: to make the presentation that his supporters in Congress (led by senators Ted Cruz and Josh Hawley) had intended to make on 6 January until, that is, they were so rudely interrupted by the storming of the Capitol Building.

But if the Senate votes to award itself jurisdiction – if Chuck Schumer’s Senate majority is then joined by 17 renegade Republicans in voting to convict President Trump of fomenting insurrection – and the Senate then votes by a simple majority to bar Trump from office, what could be closer to “banishment”? It would be a ghastly precedent that would open up the possibility of a constant cycle of recrimination between elections.

“You don’t have to go to law school to figure this out,” says Kenneth Starr, former U.S. Solicitor General and a defender of Trump during his first impeachment trial:

Someone who reads thoughtfully and carefully the Constitution and sets politics aside, will see that the structure, the wisdom of the Constitution, the language of the Constitution says if you have something against Donald Trump, then stay tuned, there may be another election in four years’ time, but don’t use a device that was never designed, intended, nor textually authorising this kind of proceeding.

Even if the Senate does vote to bar Trump from public office, it is unlikely to be an end to the matter. Assuming the worst, Starr believes:

The President will then be able to file an action in the appropriate federal court saying essentially what the Congress did, what the Senate did by imposing this punishment, was to create what was called in the Constitution a bill of attainder. The legislature is not to single out an individual and visit punishment on his or her head. That happened all the time in England. That’s what Parliament did. And our founding generation said we want none of that. The Congress of the United States will not be able – Article 1, Section 9, right there with ex post facto, you can’t make something a crime that wasn’t a crime at the time, but bill of attainder is right there. Why? Because it would be an abuse of Congressional power, of Senate power, it would be profoundly unfair to the victim, here for President Trump, this bill of attainder.

Perhaps the Senators ought to read the eloquent speech of Lord Digby in the matter of the Bill of Attainder against the Earl of Strafford in April 1641. Digby had been one of Strafford’s most vigorous prosecutors in his impeachment, yet he faltered when it came to pronouncing the King’s minister guilty of treason and thereby punishable by execution. “I confidently believe him to be the most dangerous minister, the most insupportable to free subjects, that can be charactered,” he declared. “I believe his practices in themselves to have been as high and tyrannical as any subject ever ventured on…” Nevertheless, Lord Digby voted against Strafford’s execution, instead requesting that the impeachment may be “such as may secure the state from my Lord of Strafford, without endangering it as much by division concerning his punishment, as he hath endangered it by his practices”.

These wise words failed to save Strafford’s neck; but Schumer, McConnell, and Romney may do well to heed them.

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