By: James Freeman – wsj.com – January 23, 2020

Senate jurors are responding in different ways to the impeachment case being made by House Democrats. “Gum-chewing, snacking, yawning and alleged napping could be seen throughout the cramped chamber,” reports Laurie Kellman of the Associated Press. But just because a prosecution’s case is boring doesn’t mean it can’t also be misleading. Senators should take care to examine the historical record on impeachments.

As for the napping allegations being leveled against multiple lawmakers, Lee Moran writes at HuffPost:

Sleepy and absent senators attracted the wrath of MSNBC’s Chris Hayes on Wednesday night as the “All In” host chastised them for not focusing 100% on the impeachment trial of President Donald Trump.

“These peoples’ jobs is to do this,” Hayes said during a panel discussion on reports that at least one GOP lawmaker had fallen asleep during proceedings and others had left the chamber for extended periods.

“I mean, this is literally the job,” Hayes continued. “If you find it too annoying or frustrating or uncomfortable to sit for eight hours and listen, you can resign tomorrow and go get another job. Like, this is your job.”

Of course many voters would disagree with Mr. Hayes and insist that the trial is a partisan detour from the job of representing the interests of constituents. Such voters might also point out that among the lawmakers charged with napping offenses, not all are Republicans.

The A.P.’s Ms. Kellman reports:

Almost immediately after Chief Justice John Roberts gaveled in Wednesday’s session of President Donald Trump’s impeachment trial, bored and weary senators started openly flouting some basic guidelines in a chamber that prizes decorum…

A Democrat in the back row leaned on his right arm, covered his eyes and stayed that way for nearly a half-hour. Some openly snickered when lead prosecutor Adam Schiff said he’d only speak for 10 minutes. And when one of the freshman House prosecutors stood to speak, many of the senator-jurors bolted for the cloak rooms, where their phones are stored.

… Well into Schiff’s second hour of opening arguments, he moved on from discussing the first of two charges against Trump.

“Now let me turn to the second article,” Schiff said. That prompted several senators to shift in their seats and smile at each other in apparent bemusement.

If Mr. Schiff fibbed about the length of his oration, the transgression hardly compares to the years he spent making a bogus claim of “more than circumstantial” evidence of Russian collusion. Nor does it compare to his false claim regarding contacts with the so-called “whistleblower” he used to trigger impeachment, nor his false claim that the “whistleblower” has a “statutory right” to remain anonymous.

Mr. Schiff’s track record is all the more reason for senators to be skeptical of his new message on constitutional history. Still trying to explain why they are trying their case against the President without alleging any actual crime, Mr. Schiff and his fellow Democrats have been quoting Alexander Hamilton and suggesting that a partisan impeachment with a vague charge alleging political motivation is exactly what the founders had in mind.

Harvard law professor Laurence Tribe pitched in with a Washington Post op-ed this week. Writes Mr. Tribe:

Alexander Hamilton in Federalist 65 defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Any number of such violations of the public trust — such as working with foreign governments in ways that make the president beholden to their leaders, or cooperating with those governments to bolster the president’s reelection — clearly must be impeachable even though they might violate no criminal law and indeed no federal statute at all.

But if Professor Tribe had read just a little further in Federalist 65, he would have noted Hamilton’s expectation of criminal prosecutions following the removal of public officials from office. Wrote Hamilton:

The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.

This expectation that officials impeached and removed from office would then face criminal jeopardy helped inspire Hamilton to argue that the Senate and not the Supreme Court should hold impeachment trials. He continues in Federalist 65:

Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office.

Given Mr. Schiff’s recent history, it would be almost criminal for senators to accept his version of America’s history. Perhaps they’ll stay awake long enough to dismiss his case.

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Source: Schiff, Hamilton and Impeachment – WSJ