When I was a prosecutor, I was required to establish that the charges I filed and pursued against a defendant were committed while the defendant was in Flathead County. This is called proving jurisdiction. I couldn’t even tell the judge the bad guys’ bad acts without first proving that the court had jurisdiction, which is the legal term for the authority to hear the case. The court must have jurisdiction at the time of the offense and throughout the accused’s entire process and trial. If something changes and the court no longer has jurisdiction at any time during the trial, the matter must be dismissed. This makes sense because anything the court does after it loses jurisdiction is meaningless and has no force of law. Its actions are futile without jurisdiction or power to govern the matter. More bluntly, if while awaiting trial for homicide, the alleged murderer dies, the charges are dismissed as there is no person over which the court has authority to punish, and you can’t punish a dead guy.
This basic legal premise is critically important when bad things happen to prevent chaos. We must ensure the “wrongs” are “righted” in the proper forum. So it goes with impeachment. The House of Representatives is essentially a prosecutor. It decides if sufficient evidence is present to “charge” a president with an impeachable offense. If it so finds, the House selects individual members to try the impeachment before the Senate as the Senate is the judge and jury. However, the Senate’s ability to act is limited:
“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold … any office.”
While the House was preparing their case for trial, Donald Trump suffered the sole consequence of impeachment: he stopped being the president. Moving forward with the Senate trial is futile. And the battle cry, “yes, but he can still be disqualified from holding office again,” is just constitutionally false. The penalty is conjunctive by using the word “and;” disqualification from holding future office cannot occur without removal from office occurring. You can’t remove a person from office when he doesn’t occupy the office.
Without impeachment, “America” still has a remedy for the actions of Donald Trump. The Constitution expressly allows a prosecutor to file criminal charges against Mr. Trump. But in this instance, impeachment is a futile, costly, and unconstitutional proceeding. Historically, a former officeholder has been (unconstitutionally) impeached; however that fact doesn’t render the current proceedings constitutionally legitimate, i.e., two wrongs don’t make a right. Refusal to follow the Constitution’s plain language is emblematic of a Congress that continues to water the garden while the house is on fire. Until America takes priority over political wins and the supreme law of the land, the Constitution, is followed, we will remain a country divided.
Tammi Fisher is an attorney and former mayor of Kalispell.