Tuesday, February 9, 2021

The Bill Of Attainder Artifice

 In Stuart England times were fraught.

James I pretty well pissed everybody off but he lasted out his reign to a normal death.

Charles I, James's son, pissed everybody off, got his head cut off and that ushered in 40 years of Cromwell, the rise of the Whigs and a lot of trans channel war.

Charles II, Charles I's brother got brought back to the throne from where he was living in France because the Brits had had a belly full of Cromwell, and when he died, and his son proved almost immediately to be incompetent they wanted to get back to normality: a king on the throne.

Charles II dodged and wove and avoided pissing anybody off too much (in fact he had his moments; he went out into the streets and fought the London fire with everybody else) but he did sign a secret deal with Louis XIV of France swearing his fealty to Louis for a lot of money that he needed to keep up his life style which included enough royally controlled military power to make him feel safe from the threat of the people.

Charles II died and his brother James II took over and immediately pissed everybody off again.

He lasted a little while but some secret negotiations between various British politicians - Marlborough among them - induced a Dutchman, William of Orange (married to James's daughter) to invade the island and run James out.

James cut and ran to France where he became house guest of Lois XIV (James knew about the secret agreement).

William of Orange became William III, king of England; he and his wife were installed as co-monarchs and had a quite successful reign; she ran the kingdom while he organized and executed the first world war in history, checkmating Louis XIV from establishing what Napoleon did establish 120 years later, and what Hitler tried to re-create in our not distant past.

That's all interesting, at least to me, but the really interesting part of those times is the machinations of the British Parliament during that era.

When if wasn't prorogued it was in control of the Whigs, or sometimes it was in the control of the Tories.

And they really hated each other, so when one was in power, if one were of the other faction it was a good idea to watch what was going on behind one.

One of the favorite tricks of both factions, when in power, was to pass bills of attainder.

These were legislative sentences passed upon people, mostly enemies; they frequently contained death sentences.

They were heinous examples of non judicial punishment: the legislature was passing judgement and and prescribing punishment.

That's not a real solid practice according to common law.

In any event, most of the targets of attainder never felt its pain because they usually were people of substance and could slither off to Romney Marsh and sail over to France or somewhere nice and wait for their party to come back to power.

All these years later attainder is one of two interlinked objections that trump's lawyers are lodging against going forward with his trial for inciting an insurrection.

They say that he is a private citizen and therefore immune to the impeachment remedy for high crimes and misdemeanors prescribed by the Constitution.

They further say that if the trial were to commence it would be an act of attainder, which is prohibited by our Constitution, since a hapless citizen (donnie) would be entangled in the tentacles of a legislative process (the Senate) which tries impeachments and is part of the legislature, so any punishment they might deal out would be non judicial and therefore attainder.

What unmitigated drivel.

Long standing precedent and 150 or so current Constitutional scholars say that donnie has been properly impeached and can and should be tried.

He committed the crime while "president", was indicted (impeached) while "president" and can be tried for his crimes.

The attainder argument is just alluding to irrelevant history. 

But talking about it sounds good when you are way over your head and substituting shouting for coherence.

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