"Deprivation of Rights Under Color of Law" is the formal title of the federal statute. The statute is listed as 18 US Code 242, and it reads, in part:
"Whoever, under color of law, statute, ordinance, regulation, or custom, willfully subject any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States ... shall be fined under this title or imprisoned not more than one year, or both."
The portion left out was merely the second avenue of violation, whereby the same entity would impose different types of punishment because of a person's color, race, or citizenship status. Point being, that when it comes to how the House Dems under Nancy Pelosi conducted their impeachment of Donald Trump, they clearly violated 18 US Code 242, and there is no portion of the law which makes members of Congress exempt from the statute.
You see, impeachment is defined by the Constitution, and therefore impeachment very much operates under color of law, the supreme law of the United States. There is another vital part of the same Constitution, the Fourth Amendment, which reads: "No person shall be ... deprived of life, liberty, or property, without due process of law." Moreover, the Sixth Amendment reads:
"In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
Repeated court rulings have interpreted the Sixth Amendment to mean that the accused must be able to cross examine witnesses brought against him, either personally or by his chosen counsel, in addition to the overtly stated standard of being able to bring favorable witnesses to testify. Additionally, settled court rulings add that hearsay evidence is not allowed, that witnesses must have first hand evidence of the actions the accused is on trial for.
Despite all this controlling law, most of it our supreme law of the Constitution, Nancy Pelosi, Adam Schiff, and Jerrold Nadler conspired to deny Trump the right to have counsel present during the impeachment hearings, the right to confront all witnesses against him, the right to bring his own witnesses to testify during the hearings, as well as the right to cross examine the witnesses who were brought against him, and based nearly all testimony against him on hearsay evidence. These were all criminal violations, and were done under the color of the House operating under Article I authority of the US Constitution.
To list the judicial rulings the House violated would take too long. When these obvious violations were pointed out to these House Democrats, their refrain was that impeachment is not a legal action, but a political action. That is utter nonsense! Impeachment is codified law because how it is conducted is expressed in the Constitution, which again is the supreme law of the land.
In every legal sense, the subject of an impeachment hearing is himself a criminal defendant, being impeached because it is believed he committed "Treason, Bribery, or other High Crimes or Misdemeanors." The reason why the Founding Fathers put the authority of Impeachment and follow-on trial, in the hands of the House and then the Senate, exclusively, is because it was considered that putting it in the hands of the federal judiciary would unbalance the powers of the three branches of government to check each other. It was believed that those who carry out impeachment and trial for removal from executive office, must be more directly accountable to the people than are federal judges.
Moreover, any dispute arising over how the impeachment was handled, or the Senate's trial to consider removal, would likely be presented to the federal court, almost certainly to the US Supreme Court, and therefore the court could not check itself, nor could a court action be subject to some unusual Legislative check.
But, make no mistake, impeachment is very much a legal proceeding, and it is very much restricted to rendering a finding of high crimes and misdemeanors. Accordingly, impeachment must conform to the Constitutional requirements of due process of law. Not only has what the House done in this case unprecedented, which is saying a lot given impeachment has only happened three times in national history to a US President, but what has happened is extremely dangerous. If impeachment is warped into some political theater, devoid of due process and all legal rights, then every member of the executive branch of the US government has suddenly been required to surrender his Constitutional liberties as a pre-condition to entering his office. This cannot be, and it cannot stand.
The last thing written into the Constitution is just as vital as the first thing written into the Constitution, and therefore no amendment is subordinate to any article, including Article I impeachment authority. In fact, follow on amendments can and have voided previous amendments. Even though the House has exclusive authority to impeach, and even though the Senate has exclusive authority to conduct the impeachment trial, those two exclusive authorities must work in harmony with all of the Constitution, or it must be sanctioned for violating it.
Though highly unlikely to happen, the legal truth is that when this sordid partisan mess is finally concluded in the Senate, there should be an immediate federal indictment handed down against Nancy Pelosi, Adam Schiff, and Jerrold Nadler, for willful violation of 18 US Code 242, Deprivation of Rights Under Color of Law. In my opinion, they should be found guilty in federal court, and each of them sentenced to the full year in federal prison.
The reasons are many, but perhaps the most important reason is to see a US Supreme Court ruling that formally links the Article I impeachment authority with the other Constitutional requirements to adhere to due process rights. These rights are afforded to all citizens of the United States, including people who hold office in the executive branch of government. Sentencing members of the House to federal prison, for violating these rights, might be the only way to ensure it never happens again.
-- Ken Stallings
This column is copyrighted under provisions of the Digital Millennium Copyright Act (DMCA) and all rights are reserved. Please do not re-transmit, host, or download these columns without my written permission.