by Atty. Emmanuel S. Tipon
The term “moro-moro” is a farce performed during town fiestas in the Philippines to entertain the people. It involves a sword fight between a Christian and a Moro (Muslim Filipino). After exchanging fighting words in verse (“Daanam ti spadak nga ka asa” [Prepare for my newly sharpened sword”]) and an artistic sword play, the moro always loses. In the real war between the Moros and the Christians, the Moros had frequently won.
A number of people see the two impeachment proceedings against Donald Trump as “moro-moro.” The result is predictable – the impeachers always lose. There is an exchange of fighting words between the impeachers and defenders.
Why keep staging moro-moros if the result is predictable? Primarily to entertain. See “The Moro-Moro: A Lot of Funny Things Happened in the Wake of the Muslim Wars.” A number of people believe the “moro-moro” is put up to “put down” moros who have been fighting against the Philippine government since it existed and who pillaged coastal towns during the Spanish regime.
Why keep impeaching Trump if the result is predictable? The House approved the first impeachment resolution on December 18, 2019. The Senate acquitted Trump on February 5, 2020. The House approved the second impeachment resolution on January 13, 2021. The Senate acquitted Trump on February 13, 2021.
Surely impeaching Trump is not to entertain. Certainly, it is not stupidity because the result is always the same – Trump will be acquitted. Stupidity has been defined as “doing the same thing over and over again and expecting a different result.”
Trump’s second acquittal was by a 57-43 vote. Two thirds vote (67) was needed to find Trump guilty. Seven Republicans voted to convict Trump, their partymate. Romney led the “Unmagnificent 7.”
Romney had an axe to grind against Trump who apparently titillated Romney with the Secretaryship of State, but eventually did not appoint him. But why should Trump have appointed Romney who attacked him during the 2016 primary reportedly calling Trump a “fraud” after Trump had supported Romney vs. Obama in 2012? I contributed four figures to Romney. I traveled to Los Angeles to personally meet him at the invitation of Atty. Shawn Steel, the former chairman of the California Republican Party. I had thought Romney was an honorable man.
Why Stage an Impeachment If the Result Was Predicted Or Predictable – Not Guilty
Was the impeachment staged to put down Trump like the “moro moro” is staged to put down moros?
The purpose of impeachment is to “remove from office” specified officers like the President. Constitution Art. II, Sec. 4. Trump cannot be impeached because he is no longer President.
How can you remove a stain on clothing if the stain is no longer there? What is there to remove?
The impeachment power was intended to give “Congress the ability to remove from power an unfit officer who might otherwise be doing damage to the public good.”
A person who is no longer President has no “power” to “be doing damage to the public good.” The Senate did not have jurisdiction to hear an impeachment case involving a person who is no longer President.
But the impeachers cite a precedent involving a Secretary of War who resigned but was impeached any way but acquitted. Beware of citing “precedents.”
The Supreme Court held in Dred Scott v. Sandford, 60 U.S. 393 (1856) that a “negro” slave was “property” and was not a citizen of the United States, and therefore was not entitled to sue in a court of the United States. That is a precedent. It has not been overruled by another Supreme Court case.
Today, is it proper to cite Dred Scott as a precedent and prevent people of the “Negro” race (we are not certain of the “politically correct” term) from suing in federal court?
The Senate by a majority vote ruled that it had jurisdiction anyway to hear the Trump impeachment case.
So, what is the real reason for the impeachment of Donald Trump? Is it to prevent him from running for public office forever? Disqualification from public office is a consequence of a guilty verdict in impeachment proceedings.
But why prevent Donald Trump from running for public office again? Did the impeachers expect Donald Trump to win if he were to run for President again? Do they fear him?
How could the impeachers have Donald Trump disqualified from public office if they knew that they did not have the votes to find him guilty of an impeachable offense in the first place? Trump must first be found guilty and removed from office before the punishment of disqualification from public office may be imposed.
To some, Trump might have been damaged by the impeachment charges. But to many, he looked stronger.
Look at the spontaneous rally of well-wishers in Florida as he traveled from the golf course to his home on President’s Day after he was acquitted. He has still his core supporters with him – about 74 million. Only a handful appear to have jumped ship after they and their spouses had benefitted from Trump’s munificence. Did you see the rats jump from the Titanic after partaking of the sumptuous food of the first-class passengers?
Trump is not unbeatable. But to beat him, his opponent has to do better than Trump ever did – rather than by disqualifying or cheating him.
Criminal Charges for Incitement of Insurrection Possible But Not Likely
It is possible that criminal charges could be filed against Trump for incitement of insurrection.
The United States Code provides: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 18 U.S. Code § 2383.
Obtaining a conviction is not a slam dunk. The prosecution must prove beyond a reasonable doubt that: (1) Trump had criminal intent to incite an insurrection when he told his supporters ‘‘if you don’t fight like hell you’re not going to have a country anymore’’ but in the same breath said “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” (2) Trump’s words incited (provoked unlawful behavior or urged someone to behave unlawfully) and was not an utterance protected by freedom of speech, and (3) Trump’s words were for the purpose of making other persons rebel against the government, that is, they were directed to inciting or producing imminent lawless action and likely to incite or produce such action. Brandenburg v. Ohio (1969).
A Trump trial would last many years – probably until the next presidential election. Trump would be in the news every day, getting lots of free publicity. Picking an impartial jury would be almost impossible.
Who has not heard about Trump? Who does not have an opinion about him? Did the prospective juror vote for or against Trump and why did such person vote that way? Who has not heard about the words he said about “fight”? Who has not heard that he was acquitted by the Senate?
The government could bring a hundred witnesses saying they were “incited.” Trump could bring thousands of witnesses saying they were not “incited.” At least one juror out of twelve could be a Trump supporter who would vote to acquit Trump. Without a unanimous vote there would be a mistrial because of a “hung jury.” Or Trump could be acquitted. That would make his supporters become even more ardent in their support for him. Independents could swing to him in sympathy for a victim of injustice and persecution. An acquittal would make Trump, if he were a candidate, formidable.
Borrowing the quote from Mark Twain, it appears that reports of Trump’s “death are greatly exaggerated.”
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He co-authored the best seller “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. He wrote the best-seller “Knowing by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645. E-Mail: email@example.com. Websites: https://www.tiponlaw.com , https://www.hawaiianimmigrationattorney.com
Opinions expressed by columnists do not necessarily reflect the opinions of the Hawaii Filipino Chronicle Editorial Board.