The United States, along with other countries that were British colonies, operates under a common law system of justice. In a common law system the laws enacted by legislations are only the tip of the legal iceberg. The balance of law consists of lawyer-made law, previous judgments by judges. j Precedent is of vital importance in a common law system. In some cases the law simply does not apply and the case should be dismissed. Most European countries operate under a civil code system. In a civil code system the law always applies to the case and the role of a judge is to determine how it applies. Precedent is, therefore, less important.
I grew up in Missouri and my dad was a lawyer. As a consequence of that I may be more sensitive to this than others—Missouri and Louisiana are the two U. S. states in which civil code law is the most influential. Missouri at least has a sort of hybrid system.
The editors of the Washington Post disagree with the senators who believe that the Senate has no jurisdiction to impeach President Trump now that he’s left office:
HOUSE EMISSARIES delivered to the Senate on Monday an article of impeachment against former president Donald Trump, setting the stage for an unprecedented trial of an ex-chief executive. As they were sworn in as jurors on Tuesday, Republican senators appeared to be splitting into three groups: those arguing Mr. Trump’s actions do not warrant impeachment; those open to convicting him; and those claiming that the former president cannot be tried because he is no longer in office. It is with this last camp that Mr. Trump’s fate likely resides. Most GOP senators voted unsuccessfully on Tuesday to force a debate on the constitutionality of trying Mr. Trump.
Their theory — that impeachment applies only to sitting officials — is not beyond the pale. But it runs against the weight of scholarship, historical practice and common sense. Many Republicans may be embracing the theory nonetheless because it gives them an excuse to avoid any responsibility: They do not have to condone the former president’s incitement of the Jan. 6 Capitol invasion, but they also do not have to anger his supporters. Put briefly: They continue to indulge Mr. Trump’s toxic influence on their party.
They cite the case of William Belknap in 1876 but artfully elide over the fact that although the House impeached Mr. Belknap the Senate did not convict him and the reason given by many of the senators at the time was that although they believed Belknap was guilty of the offenses for which the House impeached him they also did not believe that the Senate had the constitutional authority to try him because he was then a private citizen and there is no authority to impeach private citizens.
I find the editors’ reaction a sort of mixed bag. They’re trying to find logic in the law which does not exist, assuming the law always applies to the case at hand, and ignoring the only precedent we have which acquitted, basically for lack of standing. The relevant passages are Article II, Section 4
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
and Article I, Section 3:
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
The present proceedings in which contrary to the Constitution another senator is presiding suggests to me that the members of the Senate are conflicted about their own authority in the matter. If they’re trying the president, the Chief Justice should preside. They have no authority to impeach private citizens. When the law doesn’t apply it doesn’t apply and such precedent as there is concurs with that. We do not have a civil code system. Basically, it’s a defect in the law which should be remedied.