I believe the action Congress is presently committing against former president Donald J. Trump in the name of “impeachment” is actually a Bill of Attainder (specifically prohibited by the United States Constitution in federal law under Article I, Section 9, and in state law under Article I, Section 10).
I fully concur with attorneys David Freiheit and Robert Barnes in the video above that the “impeachment” trial of former president Donald J. Trump is illegal, unconstitutional, and constitutes a Bill of Attainder against private citizen Mr. Trump. This charade is not presided over by the Chief Justice of the United States as the Constitution mandates. This is the position put forward Mr. David Schoen as Trump’s attorney.
For another viewpoint I refer readers to the article below which addresses this issue:
Bills of Attainder and Trump’s Impeachment
By Tom Saunders BA/BS Certified Linguist
Donald Trump’s second impeachment trial produced David Schoen as Trump’s attorney at the Senate hearing, 2/9/21. Mr. Schoen, in his address to the Senate, in defense of his client, tried to use a bill of attainder defense. (PBS News Hour, YouTube, 37:50, David Schoen)
I started the Bill of Attainder Project with the Libertarian Party of Oklahoma around 1994-95 after doing a study through the U.S. Commission on Civil Rights. I got the cooperation I needed from the Justice Department with my letter from the Commission. My purpose was to see how “bill of attainder” was generally defined and actually defined in the law. http://www.freerepublic.com/focus/news/715740/posts
Robert Sharpe, who headed the Justice Department’s Asset Forfeiture program at the time, sent me the “United States Code” references concerning bills of attainder. (USC Art. 1, Sec 9-3) Courts use five cases to determine what is, and is not a bill of attainder, so it seemed logical to me a single sentence explaining “bill of attainder” could be constructed. In my study to the Commission I used other references besides what I got from the Justice Department, but they supported what I gleaned from the five USC cases.
The one-line definition I composed for the Bill of Attainder Project is:
“A bill of attainder is a law or legal device used to outlaw people, suspend their civil rights, confiscate property, punish or put people to death without a trial.” — Bill Of Attainder Project, Saunders, 1995, COCR- (CC#93-1-1037)
Here are the five cases with their explanations from the United States Code:
U.S. v. Brown, 381 U.S. 437, 448-49 (1956) ”What are known at common law as bills of pains and penalties, are outlawed by the ”bill of attainder” clause.
Communist Party of U.S. vs. Subversive Activities Control Board (1961). ”The singling out of an individual for legislatively prescribed punishment constitutes a bill of attainder whether the individual is called by name or described in terms of conduct which because of its past conduct operates only as a designation of particular persons.”
U.S. v. Lovett, (1946), Legislative acts, no matter what their form, that apply to either named individuals or easily ascertainable members of a group in such a way as to inflict punishment without a judicial trial, are bills of attainder under this clause.
Cummings v. Missouri (1867), states, “A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment.”
Re: Yung See Hee, 36 F. 437, (1888) Supports that the doctrine of pains and penalties as punishment without trial, is inclusive as a bill of attainder. (Source: U. S. Justice Dept.)
Mr. Schoen in his presentation cited the Brown case and Cummings, but I don’t think his performance will fit the bill in teaching anyone a viable definition and understanding of their rights. But, Schoen’s argument brought up the possibility that rights are, or should be treated like they were property. James Madison would agree.
I have contended for a long time that asset forfeiture laws were bills of attainder. Until Timbs vs. Indiana in 2018, I could claim that Americans were “Subjects,” not “Citizens” who had rights of property over the government’s right to take it. The Court’s decision in Timbs made us citizens again, sort of…
“In a major victory for civil liberties advocates, the Supreme Court has unanimously ruled to limit the practice of civil asset forfeiture—a controversial practice where police seize property that belongs to people suspected of crimes, even if they are never convicted. On Wednesday, the court ruled the Eighth Amendment protects people from state and local authorities imposing onerous fines, fees and forfeitures to generate money.” https://truthout.org/video/supreme-court-rules-against-high-fines-and-civil-asset-forfeiture/
Mr. Schoen in my opinion did a good job of connecting bills of attainder as a part of the right to due process. He made a good argument in distinguishing the legislature’s and the judicial lines of separation in their separate roles of the legal process. But I don’t think Donald Trump is the victim of a bill of attainder violation.
In spite of the Senate hearing I don’t think I could ask a United States Senator or Congressman to explain to me what a bill of attainder is, and get an adequate answer. I’ve been thinking for over two decades what that would be like to find all elected officials could explain what bills of attainder are. I have spent over two decades polling politicians, lawyers and judges if they knew what a bill of attainder was and very few could even come close.
Are your civil rights your actual property? If so can the legislature make laws specifically for Proud Boys or Trumpanzees? They can as long as the corpus of the people and government do not know how to define their rights. The law should not be used to plunder life, liberty or property.
“A bill of attainder is a law or legal device used to outlaw people, suspend their civil rights, confiscate property, punish or put people to death without a trial.”
Should Mr. Schoen ask the House for a retrial and this time have the Chief Justice preside? This way Mr. Trump cannot say he is deprived of a judicial trial? ‘Cummings’ specifies a person is entitled to a “judicial” trial. In this case I don’t see Trump or Schoen making any better position for Trump’s future. Nobody is above the rule of law, and nobody has the right to be a danger to himself or anyone else…
Donald Trump has demonstrated a clear pattern of illegal behavior concerning subornation of false claims and violent behavior. There is just cause to bring him to justice for his obvious crimes and outrageous behavior both on a state and federal level.10:19 pm on February 10, 2021 Email Charles Burris