In the Answer to the Article of Impeachment, attorneys for the former POTUS may have admitted, inadvertently, to important facts that could undermine the defense they intend to interpose - that a person, once out of office, cannot be impeached.
First, the statement of an opposing party made by the party in an individual or representative capacity is not considered “hearsay.” F.R.Evid. 801(d)(2)(A); United States v. Nixon, 418 U.S. 683, 700-01, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974).
Any relevant statement made by a party or his agent acting in the scope of his employment, which is offered against that party, is generally admissible into evidence as an evidentiary admission (see Fed. R. Evid. 801(d)(2)(B)(C) and (D)).
Second, the attorneys admitted trump questioned the validity of the election: “It is admitted that after the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect,...
since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states (sic) election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures....
Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.” If trump claims the election was rigged, then those results are void.
A Federal Court can order the results of an illegally conducted election void. Donohue v Bd of Elections, 435 F.Supp.957, 968 (E.D.N.Y. 1976). If the results are void, then trump is POTUS. If trump is POTUS, there goes his defense from impeachment.
Also problematic are other aspects of the “Answer.” It states: the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation.” (Answer, p. 5.)
The Constitution and the first ten amendments to it, Bill of Rights, are not separate documents. An amendment, once ratified, is “valid to all Intents and Purposes, as Part of this Constitution...” Const., Art. V. This is important for later amendments, such as XIV and XVII.
The Answer also imparts “meaning” to Chief Justice Roberts not presiding over the trial, as required by Const. Art. I, sec 3, cl. 6, and asserts the House chose to allow jurisdiction to lapse so that a “partisan Senator who will purportedly also act as a juror” will preside. (Answer, p. 13.)
As I noted on January 28, the rule is universal: neither a material witness to, nor a victim of, an alleged crime can serve on the jury before which the person accused of that crime is tried. On the other hand, a presiding judge can rule on a case. That’s called a “bench trial.”
We can discuss this and other fun topics today, at 4:20, on Civil Discourse Now. Also, we have news about the Deep State/Antifa Secret Decoder Rings!