Congress Seeks To Make a Ham Sandwich Out of Donald Trump

The opening hearing of the House Select Committee on January 6 calls to mind the adage about how a prosecutor can get a grand jury to indict a ham sandwich. The hearing presented slickly-edited video of the riot, inter-spliced with snippets of the committee’s closed door interviews with such figures as Jared Kushner and Ivanka Trump. Yet there wasn’t a moment of cross-examination or a hint of the hoary concept of due process.In marking that point it’s not our intention to defend President Trump’s actions — or inactions — on January 6, or during the run-up to the riot or his desperate last attempts to hold onto his presidency. It is our intention, though, to mark the importance of due process, never more so than when one is dealing with the kind of chaos we saw on Capitol Hill January 6. Our Constitution sees due process as an indispensable element of justice.The first day of the hearings struck us as illustrating with schematic clarity why our Constitution prohibits Congress — or any state legislature — from passing any bill of attainder. Such bills are legislative measures that pronounce an individual guilty of a crime. They are absolutely prohibited by the Constitution, whose framers were keenly aware of the abuses of attainder under the English kings and, all too often, in the American colonies themselves.The January 6 committee would have just appalled the Founders, starting with the exclusion of any Republicans who might support President Trump. Speaker Pelosi wasn’t concerned about bias, per se. The two Republicans admitted to membership — Congresswoman Liz Cheney and Congressman Adam Kinzinger — were biased from the get-go. It was pro-Trump bias that worried Mrs. Pelosi and the Democratic leadership.The result, at least on the first day, is that the hearing featured not a particle — nary a gluon — of skepticism or cross-examination or defense. Which reminds us, per above, of a grand jury. Or even worse, of a Soviet-type show trial. There is no doubt that video shown Thursday was as horrifying as the coverage that aired, some of it live, on January 6 itself. Yet can anyone trust Congress’s version is the full story?It seems to be Congress’s assumption that handing over to the Justice Department of the evidence adduced by Select Committee will remove the taint of the attainder itself. The prohibition on attainder in Congress, though, was, as Chief Justice Warren once put it, “intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers.”Warren called it “a general safeguard against legislative exercise of the judicial function, or, more simply, trial by legislature.” Our A.R. Hoffman yesterday also quoted Justice Joseph Story as warning of Congress assuming “judicial magistracy” and “pronouncing upon the guilt of the party without any of the common forms and guards of trial” — an “irresponsible despotic discretion” governed “solely by what it deems political necessity.”That is exactly what we saw in the hearing broadcast Thursday evening. All of us were horrified by what happened on Capitol Hill January 6, and the American people deserve to have this sorted out in the proper way. Not only did the Select Committee fail to do that but transferring the fruit of its attainder to the Justice Department will only repeat the abuse. Better to have let the due process be pursued by the proper authorities in the first place.

Congress Seeks To Make a Ham Sandwich Out of Donald Trump

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