It’s Not an ‘Impeachment Trial’ So What Is It?

The impeachment clause of the U.S. Constitution, Article I, Section 3, Clause 6: states: “When the President of the United States is tried, the Chief Justice shall preside.”

The Constitution expressly requires the Chief Justice of the U.S. Supreme Court to preside over a presidential impeachment trial. But Chief Justice John Roberts is nowhere to be seen in the ongoing U.S. Senate “trial” of former President Donald J. Trump.

Instead, Senate President Pro Tempore John Leahy, a partisan Democrat from Vermont who already has declared his support for Trump’s impeachment, is presiding.  Leahy is also a juror, which makes the situation even more absurd.

If it is Robert’s job to preside at the impeachment trial then he darn well should be doing it. But he is definitely not there. He’s not sick or otherwise incapacitated. He’s just absent.

The Supreme Court has no comment about Roberts’ absence from Trump’s second “impeachment trial.” There is speculation that Roberts refused to preside because Trump is no longer President. As previously noted, the impeachment clause specifically pertains to “[w]hen the President of the United States is tried.”

Roberts’ Absence = Not An Impeachment Trial

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Impeachment ‘Trial’ May Become GOP’s Worst Nightmare

The Democrats unwise push for an impeachment trial in the U.S. Senate is shaping up to become the Democrats worst nightmare.

Instead of allowing GOP President Joe Biden’s administration to move smoothly ahead, the trial will open up a Pandora’s Box of unexpected troubles and drag the country back to the issue of whether Biden was rightfully elected.

The article of impeachment against former President Donald J. Trump was poorly drafted and hastily passed by House Democrats without an real evidentiary hearing. If the Democrats had taken more time and given the article more thought, they could have closed potential lines of inquiry about the legitimacy of the election. For whatever reason, they did not take the time and now, to compound the damage, they are insisting on moving ahead with a trial in the U.S. Senate.

House Speaker Nancy Pelosi said she will send the article of impeachment to the U.S. Senate on Monday, rejecting a request by Republican Senate leaders to delay the start of the trial until February. Possibly it dawned on Pelosi that delay gives Trump more time to prepare for the hearing.

False Claim?

The article accuses Trump of abusing his power by making “false claims” to his supporters at a rally on Jan. 6, the day a group of thugs broke into the Capitol Building on national television and sent legislators scurrying in fear.

One such claim, according to the article of impeachment, was Trump’s statement that “we won this election, and we won it by a landslide.” This statement is the equivalent of an invitation for Trump to defend himself by introducing evidence that the election was indeed stolen and the claim is true.

This Article contains an invitation for Trump to defend himself by introducing evidence the election was stolen.

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When Courts Refuse to Intervene in Election Disputes…

You could see the turmoil on U.S. Senate Majority Leader Mitch McConnell, R-KY, face as he criticized fellow Republicans.

He said he could not support overruling the Congressional count of state Presidential electors at Wednesday’s Joint Committee of Congress because “If we overrule them, it would damage our republic forever.”

He said he couldn’t justify such damage when “dozens of lawsuits received hearings in courtrooms across our country. But over and over, the courts rejected these claims.”

Courts played a central role in creating the election crisis and exacerbated it by refusing to get involved.

Despite McConnell’s hesitancy, some 100 GOP members of the U.S. House of Representatives and a half dozen dozen members of the U.S. Senate stepped up to oppose certification of the electors in a handful of swing states.

Among other things, they cited new election rules approved by partisan courts shortly before (or even during) the election. They said these judicially sanctioned rules set new election dates and procedures that invited fraud and chaos. They alleged the judicially-sanctioned rules violate the U.S. Constitution, which assigns exclusively to state legislatures the responsibility for elections.

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Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.