EXCLUSIVE TO WAR ROOM by Rudolph Giuliani

If the Senate of the United States wants to impose fair and time-honored rules to this phony impeachment, it will apply the Federal Rules of Criminal Procedure.

Then we can finally have impartial rules governing this national assault on constitutional rights and procedures.

There are many temptations to avoid the rules and turn the trial into another political circus.

Democrats calling witnesses who are bitter about being fired or worse, lying to avoid jail. Republicans calling witnesses proving that the Bidens sold the Vice Presidency for millions in Ukraine to protect their patron Mykola Zylochevsky.

Indeed they might go further and show that every time Joe was a point man, his family sold his office for millions.

Ukraine, China, Iraq…

An investigation into this should happen on its own, but not as part of an impeachment proceeding. It’s time to return to law and procedure.

THE FEDERAL RULES OF CRIMINAL PROCEDURE

The Rules of Federal Criminal Procedure require a defendant to raise the failure of the indictment to state a crime before the trial begins.

Rule 12 (b) (3) (B) (v) requires a motion to dismiss for failure to state an offense be made before trial. Among other reasons, our federal judicial system should not be abused by trying disputes other than crimes.

The reasoning applies with even greater force to an impeachment of a President.

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Before proceeding, articles of impeachment should be subjected to an analysis as to whether they state an impeachable offense. If it does not, it is not only an abuse of power but an unconstitutional violation of separation of powers.

The power of the House is broad on impeachment. But it is not unlimited.

No constitutional power is without limits. The House cannot impeach for any reason.

In Article 2, section 4 of the Constitution it provides only the following offenses allowing the House to impeach: treason, bribery, or high crimes and misdemeanors. Thus an impeachment, like an indictment, must be tested by a motion to dismiss if it fails to allege an impeachable offense.

If not, the Senate will have abandoned its duty to provide a fair trial.

PASSING MUSTER

Tested by the standard of alleging an impeachable offense, both articles fall on their face. They don’t even pretend to reach the standard.

The first article, “abuse of power” – based on President Donald J. Trump’s conversation with President Zelensky of Ukraine – is a conversation without threat, pressure, inducement or quid pro quo.

Unlike former Vice President Biden, President Trump did not threaten to withhold $1 billion unless the Ukraine President fired the prosecutor of Biden’s son, and their patron, oligarch Mykola Zylochevsky.

Those allegations reveal a very clear charge of bribery or extortion. The charge “abuse of power”, however,  is not a crime or misdemeanor (high or low), and an impeachment article alleging it must be dismissed for failure to state an impeachable offense.

The second article, “obstruction of Congress”, is also not a crime or misdemeanor.

The Criminal Code, State law, and common law have a number of obstruction crimes, high and low, and none of them involve obstruction of Congress.

The sparse factual allegations make it even more absurd because this is all about the Executive wanting a judicial decision on numerous, overlapping subpoenas arguably violating well-recognized privileges including attorney client, attorney work product, executive and deliberative privileges. It also must be dismissed for failure to state an offense.

This is not necessarily the best political result for either side. But it is the only result to restore us to a government of laws.

It would be a mockery of justice to have a trial on charges that are insufficient to result in anything other than an acquittal.

To entertain this impeachment based on anything the House wants to do sets a very damaging precedent which could tempt future Houses to use impeachment for political leverage.

The framers carefully balanced the power each branch possesses and placed limits. The Pelosi House has trashed those limits in almost every respect. It failed to give President Trump the balanced treatment given to prior presidents. It voted impeachment for the first time on an entirely partisan vote.

Most importantly, it failed to state an impeachable offense.

Failure to dismiss would give credence to this entirely illegitimate process. It will encourage similar behavior from future partisan majorities. And it will truly disappoint Alexander Hamilton who feared this might happen if we ever have partisans whose hate or political ambition overcame their love of country and reverence for our finely balanced constitution.

Let us at least let Hamilton rest in peace at Trinity Church, where even the 9/11 attack did not do damage.

Mr. Rudolph Giuliani is Donald Trump’s personal attorney. He served as mayor of New York, 1994-2001.