Liz Cheney Will Get a Medal for Attainder

President Biden’s plan to bestow on Congresswoman Liz Cheney and Congressman Bennie Thompson Citizen’s Medals is being described by the Times as a continuation of his push for “bipartisanship and decency in politics.” Yet we see the January 6 committee, and the work of its members, as violations of the constitutional prohibition on bills of attainder — that is, the prohibition of trial by legislature.This prohibition is one of the most sacrosanct in American constitutional law. The abuse of attainder goes way back in Anglo-Saxon law and, before the ratification of the Constitution, in our own country. As used by such tyrants as Henry VIII, attainder came to be despised as incompatible with due process, though it was used in Britain’s American colonies. Now, in addition to our national parchment, every state constitution bans attainder.Yet the temptation to attain persists. In 1965 the Supreme Court, in Brown v. U.S., voided as a bill of attainder a section of the Labor-Management Reporting and Disclosure Act that sought to make it a crime for a Communist Party member to serve as an officer in a labor union. The Nine have ruled that courts are meant to give “broad and generous meaning to the constitutional protection against bills of attainder.”James Madison in 44 Federalist calls bills of attainder “contrary to the first principles of the social compact,” and there’s no better word for what Ms. Cheney and Mr. Thompson were doing. An otherwise glowing dispatch in the Times discloses that more than 12 federal prosecutors were attached to the committee. Subpoenas and witnesses were drafted and summoned by the hundreds. If it looks, swims, and quacks like attainder — it’s that very duck.Ms. Cheney’s duck swam far. The committee report informed Special Counsel Jack Smith’s election interference case against the president-elect. The Times even reckoned that one of Mr. Smith’s filings “was not unlike the tome-like report issued nearly two years ago by the House select committee.” That makes the entire case — already dismissed on account of presidential immunity — fruit of the poisonous tree, meaning inadmissible in court.Then there is District Attorney Fani Willis’s case, at Fulton County. The prosecutor may be disqualified, but her criminal charges against Trump and 18 others still stand. Our A.R. Hoffman reports on how a conservative legal group, Judicial Watch, has filed a freedom of information request in respect of her correspondence with the J6 Committee. Ms. Willis is stonewalling and claiming that those records exist — but are protected by privilege. Talk about chutzpah. Ms. Willis claims that her interactions with the committee led by Ms. Cheney and Mr. Thompson are “records in a pending, ongoing criminal investigation and prosecution.” That, though, is precisely what the attainder clause prohibits. Regardless of whether Ms. Willis claws her way back onto the case, Trump’s lawyers down south could yet mount a challenge to the charges on the basis of the prohibition against attainder. Mr. Biden lauds Mr. Thompson and Ms. Cheney as standing “at the forefront of defending the rule of law,” but their pursuit of attainder achieved the opposite. We take a backseat to no one in our appreciation of the Cheneys’ service, and have of late championed her immunity from threatened prosecution. The same Constitution, though, that delivers her a solon’s immunity also ordains that a lawmaker cannot moonlight as judge and jury.As Trump prepares to take the oath of office later this month, feature how much constitutional bedrock has been trampled by the Democrats’ pursuit of Trump across the length and breadth of America’s legal system. The 14th Amendment’s Disqualification Clause, the Appointments Clause, and the scope of presidential immunity, to name just a few, have come into view anew. The prohibition on attainder is no exception.

Liz Cheney Will Get a Medal for Attainder

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