Michael Schisler applies U.S. Code provision to senators who ‘conspired’ together
As most are aware, Senate Democrats recently voted unanimously to discard the House impeachment articles against Alejandro Mayorkas for his unlawful implementation of Biden’s open border policies. This was the first time in U.S. history that an impeachment has been summarily discarded by the U.S. Senate for a person still in office for crimes alleged while still holding that office.
The House of Representatives did its job in accordance to the Constitution, including investigations, subsequently sending its articles of impeachment to the Senate. Since the House is the duly elected representation of We the People, the articles of impeachment against Mayorkas emanated from We the People. And poll after poll shows that the American people do in fact want Mayorkas removed for his lawless handling of the southern border.
But the Senate didn’t do its constitutional duty, apparently in violation of the body’s own rules no less. And as a result, We the People were illegally denied the impeachment trial of Mayorkas and the Senate’s lawful verdict.
Nowhere in the Senate’s own published rules for impeachment do we find any plain reading of the text to support the idea that a trial of the accused via articles of impeachments is optional for the Senate. But even if it were optional, as Democrats contend, such optionality creates a monumental problem under the law.
In designing their tactic to dispose of the articles against Mayorkas, Senate Democrats mimicked a trial judge’s right to dismiss a case due to lacking evidence, in the judge’s sole opinion. The problem is, the Senate is not a trial judge and has no similar right. And even if it did, as Democrats contend, the Senate would be required to exercise that right in a way that doesn’t violate the rights of others.
But it’s impossible for the Senate to cite lack of evidence or unconstitutionality of charges without violating other’s rights because in so doing they automatically violated the constitutional rights of every U.S. citizen alive to have their duly elected representatives’ articles of impeachment against Mayorkas tried.
And therein lies the monumental problem.
This is exactly why the plain reading of the Senate impeachment rules doesn’t allow the Senate to dismiss an impeachment. Democrats had to painfully contort the Senate rules in order to come up with a “right” for them to dismiss the articles and not go to trial.
But it gets worse.
When Schumer played his hand in calling for a vote to dismiss the articles, and Democrats in the Senate voted unanimously to dismiss without further consideration the establishment of a committee to hold a trial, as offered by Ted Cruz, it’s clear that this was a predetermined course of action Democrats had war-gamed in advance to execute at the appointed time. Or said another way, Senate democrats conspired to dismiss the articles of impeachment rather than try them.
So here we have in the Senate majority’s actions, both a conspiracy and a violation of constitutional rights.
The trillion-dollar question is whether there is anything illegal about any of this. Turns out U.S. law does in fact have something Democrats swear applies to these kinds of situations:
18 U.S. Code § 241 – Conspiracy against rights, which states:
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, …”
This is the same statute being used by Democrats in their lawfare against Donald Trump for his alleged role in J6. And if it’s good enough to use against Trump, its good enough to use here, too.
Fifty-one Senate Democrats conspired to kill the valid articles of impeachment. As a direct result, constitutional rights were denied the entire U.S. citizenry to have our articles of impeachment tried by the Senate.
So now the question for the citizenry becomes, “How do we peaceably redress our grievance?” I would advocate exclusively through established mechanisms, meaning our elected representatives.
But what would we have our elected representatives do?
Impeach all 51 Senate Democrats for violation of 18 U.S. Code § 241 – Conspiracy against rights.
Simultaneously.
That’s what.
Clearly, this is a case where an unprecedented act by Senate Democrats requires an even more unprecedented response by House Republicans.
Were this to ever come to pass, which it won’t with Mike “Hakeem” Johson as speaker, the way it likely plays out is that the House impeaches the 51 Democrat senators, sends their articles of impeachment to the Senate, and all Democrats in the Senate would be prohibited from participating in the trial since, they are the impeached defendants.
From this point it becomes a game of chicken between Republicans and Democrats in the Senate. Republicans would tell their Democrat colleagues that the Mayorkas impeachment will in fact go to trial, or else all 51 Democrat Senators are going on trial.
Democrats will appeal to the Supreme Court, claiming the Senate cannot legally function with 49 members simultaneously trying the other 51 members. Who knows what the Supreme Court would do with such a mess?
But in the meantime, who would blink first? Would the Democrats capitulate and allow Mayorkas to go to trial, where he would assuredly be acquitted anyway? Or would Republicans capitulate to media smears?
I’ll be the first to admit I’m not a lawyer, but by the same token it really isn’t difficult to understand why simultaneously impeaching all 51 Democratic senators works under “18 U.S. Code § 241 – Conspiracy against rights.” For months now, Democrats have been explaining their novel new legal reasoning why this statute is surely applicable in such situations. Including the one regarding Trump with respect to J6.
And hats off to them; they did a great job explaining it in a way that even I can understand. All I’ve done is apply their own legal theories to a very similar legal predicate. And who knows, if Republicans decide to actually fight for a change instead of just whining, maybe karma pays our Senate Democrats a most unwelcome visit very soon.
House Republicans have a very real option to correct the Senate with respect to their dismissal of the Mayorkas impeachment trial. And the public needs to see Republicans do something other than capitulate as usual. To quote a famous movie depicting a precarious situation and directing it toward Republicans: “What’s your move?”
