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BOBBLE HEAD LEGAL MUMBO JUMBO

Deyan Ranko Brashich

Turn on the evening news and listen to legal pundits speak of “what to do with Donald Trump”. The comments make “how many angels can dance on the head of a pin” a no brainer. Legal scholars have a way of making simple answers complex, trying to fit a square peg into a round hole.

          The nightly gaggle of pundits is made up of eminent law professors. I love law professors because I was one once. We preen, pronounce and pontificate. Constitutional scholars like Harvard’s Larry Tribe and Alan Dershovitz are in demand, but not the likes of me – a guy who thought trial practice and procedure at a second-tier law school. Yet I am the one to ask what to do when you don’t know the answer, because I dealt with nuts and bolts of the law, not the philosophy behind it.  

          What do you do if Donald Trump is found to have violated the law? Can you arrest him? Can you indict him? Can you try him before a jury of his peers? Can you jail him? Can he be subject to supervised release? Does he have immunity? Can he pardon himself? Can any sentence be commuted and if so, by whom? Can he be impeached and tried for a crime other than a high crime or misdemeanor?

          You have as many answers as you have bobble head law professors asked – none of them on point or in full agreement. 

          The Constitution is not much help. Article II, Section 4 only provides that “The President … shall be removed from Office on impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. That speaks only to his removal from office, it does not address all of the other questions raised by the commission of a crime.

          Impeachment is a matter of politics, the most corrupt and venal of the political sciences, so forget “high crimes and misdemeanors” in any Articles of Impeachment before the House of Representatives and trial on those charges before the Senate. How about just focusing on simple garden variety felonies? That’s where the answer lies.  

          Should Donald Trump murder Melania in the White House’s Green Room with a candlestick, as in the Clue board game, what should the Metropolitan Police or the Secret Service do? Should Donald Trump sexually assault Monica, a White House intern, in the Oval Office, what should the Secret Service detail do when responding to her calls for help? Should Donald Trump intentionally deface Childe Hassam’s Oval Office painting “Avenue in the Rain” what should the FBI do? Should Donald Trump pop oxycontin pills to ease the pain of ridicule and special counsel investigations be arrested for possession?  

          The answers are stark and simple – you arrest him, you read him his rights, book him and you bring him before the appropriate magistrate having jurisdiction to be dealt with according to law. It is by politicizing criminal behavior that we embark upon that constitutionally slippery slope of parsing whether it meets the test for impeachment.

          Impeachment should follow arrest and conviction, not precede it. Do it the wrong way around and you have a Nixon and Watergate resolution. Sixty-nine government officials, including cabinet secretaries and a former attorney general, go to jail while the culprit-in-chief accused of crimes resigns and is promptly pardoned – that doesn’t seem to meet the “all men are created equal” test mentioned in the Declaration of Independence.

          Once Robert Mueller, the Special counsel appointed to carry on the Trump/2016 Presidential Campaign/Russia/Flynn/Kushner et al investigations determines that a crime, if any, has been committed by anyone, and I repeat for the sake of clarity “anyone”, then in that event, he should indict, arrest and prosecute.

Let the impeachment of Donald Trump, if warranted, proceed as a separate and distinct remedy as intended by Article II, Section 4 of the Constitution.

Deyan Ranko Brashich is a contributor writing from New York. He is the author of Letters from America, Contrary Views and Dispatches. His contact and blog “Contrary Views” is at www.deyanbrashich.com

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