. . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.
Lawyers for former President Donald Trump filed their response Tuesday afternoon to the House of Representatives’ brief supporting the article of impeachment that will be the basis for the trial in the Senate that is set to open proceedings Feb. 9.
They argue that the trial is unconstitutional, and that the House’s factual claims against the former president are false. . . .
In their 14-page response, Trump’s legal team, led by Bruce L. Castor, Jr., and David Schoen, argue that the Senate cannot try a president who has left office. They also reject the House’s attempt to argue that the president should be barred from any future public office by the 14th Amendment, dismissing claims that he led an insurrection. They add that passing any resolution to bar Trump “would constitute a Bill of Attainder in violation of Art. I, Sec. 9. Cl. 3” of the Constitution.
Within the U.S. Constitution, the clauses forbidding attainder laws serve two purposes. First, they reinforced the separation of powers, by forbidding the legislature to perform judicial or executive functions—since the outcome of any such acts of legislature would of necessity take the form of a bill of attainder. Second, they embody the concept of due process, which was partially reinforced by the Fifth Amendment to the Constitution. The text of the Constitution, Article I, Section 9, Clause 3 is “No Bill of Attainder or ex post facto Law shall be passed”.