The Son of Caligula Impeachment Congress

In my last article, “The Caligula-esque Impeachment Congress,” I recounted how Sir William Blackstone, in his 1765 "Commentaries on the Laws of England," explained the essential properties of all man-made law (as opposed to Divine Law and Natural Law), and in this context also explained how any government must promulgate its laws in the “most perspicuous manner” available, “not like [Emperor] Caligula, who . . . wrote his laws in very small character, and hung them up upon high pillars, the more effectually to ensnare the people.”

The so-called impeachment “Resolution” unveiled by House Democrats on October 29, 2019, perpetuates a Caligula-esque impeachment inquiry void of any semblance of what the U.S. Supreme Court refers to as the “essential constitutional promises” of procedural due process. To quote Congressman Jim Jordan, this latest Resolution is “lipstick on a pig.”

The Resolution released on October 29, 2019, if enacted by the U.S. House of Representatives, in its own words would be “Directing certain committees to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.”

According to a “fact sheet” posted on Speaker of the House Nancy Pelosi’s official website last week, “President Trump has betrayed his oath of office, betrayed our national security and betrayed the integrity of our elections for his own personal political gain.”

Nothing in the eight-page Resolution release on October 29, 2019, even hints at a more specific legal standard that President Trump allegedly violated. It is arguably worse than if a legal standard had been written, to quote Sir William Blackstone, “in very small character, and hung . . . up upon high pillars, the more effectually to ensnare the [President].”

Just last year, Supreme Court Justice Neal Gorsuch wrote that, “the most basic of due process’s customary protections is the demand for fair notice.” Sessions v. Dimaya, 138 S. Ct. 1204, 1225-26 (2018) (Gorsuch, J., concurring). The House Resolution introduced on October 29, 2019, provides no such “fair notice.”

Another opinion of the U.S. Supreme Court explains these “essential constitutional promises” of procedural due process:

“For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. These essential constitutional promises may not be eroded.”

Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).

The eight-page House Resolution introduced on October 29, 2019, provides no notice whatsoever of an impeachable legal standard. None.

It is thus flawed by the same constitutional deficiency I pointed out in my last “Support and Defend” article: It is designed to perpetuate an investigation into vague allegations that to this date cannot be squared with prescribed standards for any “high Crimes” or “Misdemeanors.” U.S. Const., Art. II.

It has now been two and half months since the August 12, 2019, “whistleblower” complaint accusing President Donald Trump of “a serious or flagrant problem, abuse, or violation of law or Executive Order,” quoting not a criminal statute but the federal statute that established the office of the Inspector General of the Intelligence Community, 50 U.S.C. § 3033.

When I was serving as the Senate-confirmed Inspector General of the Department of Defense (2002-05), I publicly announced this rule: “if it takes the Office of Inspector General lawyers more than a week to tell the IG what the legal standard is, the IG will not hold anybody else accountable to that standard — because that would be a Caligula-esque method of enforcing laws. . . . It’s not part of the American system of transparent and accountable government.”

Emperor Caligula may as well be running the ongoing impeachment proceedings in the House.

Anyone who has sworn an oath to support and defend the U.S. Constitution, including its essential promises of procedural due process, should insist on both formal notice of an impeachable legal standard President Trump allegedly violated — if there even is one — and, to quote the U.S. Supreme Court, “an opportunity to be heard . . . at a meaningful time and in a meaningful manner. These essential constitutional promises may not be eroded.”

Joseph E. Schmitz served as a foreign policy and national security advisor to Donald Trump during the 2016 presidential campaign. The opinions expressed in this article are his personal opinions. Schmitz served as Inspector General of the Department of Defense from 2002-2005 and is now Chief Legal Officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School, and is author of "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional ‘Enemies, Foreign and Domestic.’" Read more reports from Joseph E. Schmitz — Click Here Now.