The White House’s response to the Articles of Impeachment omitted an important argument against the Articles. The argument concerns the longstanding understanding by every just society that “ex post facto laws” are unjust.
An ex post facto law is one that retroactively criminalizes actions that were taken prior to the law’s adoption. Article I, section 9, clause 3 of the U.S. Constitution provides that Congress shall pass no ex post facto law—for good reason.
Thomas Jefferson’s take on ex post facto laws was this:
“The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong.”
A primary reason all U.S. laws are published is to give citizens fair warning of what they are prohibited from doing. Theoretically, ignorance of the law does not excuse the commission of a crime because remaining ignorant was a failure by the criminal to fulfill his duty to learn the law. That rationale for punishing people does not work if the law is unknowable. The destructiveness to social order and the villainy of ex post facto laws cannot be overstated.
For the reason explained below, if the alleged acts of “high crimes and misdemeanors” specified in The Articles of Impeachment against Trump are crimes or misdemeanors (something the White House’s response denies), they are ex post facto crimes or misdemeanors, i.e., they are prohibited by the Constitution. Consequently, the supporters of the Impeachment are violating and undermining the Constitution they swore to support and defend— while they don somber expressions and are otherwise acting as though they are bearing faith and allegiance to the Constitution.
The language of statutes is important, but the text alone is not the law. Among other things, courts interpret statutory language to make more explicit what the language was intended to mean or torture the language until it confesses a constitutionally permitted meaning (sadly, courts also too often find intentions or meanings that are either different from the ordinary meaning of a statute’s language or are simply figments of the judges imaginations, e.g., “emanations of the penumbras”). So, regardless of what a statute says, its language means whatever the courts say it means—which can be very different from the meaning of the actual language of a statute.
More important, “customs and usage” play an important role in how laws are interpreted and applied. For example, in 1986, the U.S. Supreme Court upheld Georgia’s sodomy laws that criminalized certain sexual acts that were common among homosexuals. [Bowers v. Hardwick] In 2003, however, asserting “that the sodomy statutes in colonial America in the 17th century were largely unenforced,” the Supreme Court declared that to enforce sodomy laws was unconstitutional. [Lawrence v. Texas] While the court cited equal protection and due process as the foundation of its ruling, as Bowers and Hardwick made clear, those foundations would not have been availing absent the changes in societal customs and usage between the two decisions and in Lawrence v. Texas the court relied on the fact that “the sodomy statutes in colonial America in the 17th century were largely unenforced” as a reason the law could not be enforced.
All federal employees take an oath of office to faithfully perform their duties. “Faithfully” connotes that the person swearing will put the interests of the people ahead of her own. Nevertheless, one would be hard-pressed to name any president or a member congress who has not used the powers bestowed on her to serve her personal and political purposes—with little, if any regard for the effects it might have on interests the people, the country, or the Constitution. In fact, members of congress regularly cast votes to increase their pay or benefits or to exempt themselves from the laws they impose on others—despite their clear and significant conflict of interest, and in derogation of their oath to uphold the Constitution’s requirement for the equal protection of laws. Custom and usage indicate that members of Congress are more equal than other people. Similarly, all presidents have used their presidential powers and privileges to advance their personal and political interests—at the expense of the people. In fact, it appears that most, if not all presidential utterances are designed to advance their political interests. In short, the use of power to advance a politician’s interests is commonplace and essentially never punished, especially against presidents. While it would be great if new laws were passed to prevent congresspeople and presidents from engaging in such self-serving, unfaithful activity, it would be patently unfair to ex post facto impeach all of them for having followed these longstanding customs.
When a usage becomes custom, justice dictates that the custom, rather than the dead letters on a page in a long-ignored statute book, must be the law. The fairness and justice of this rule are evidenced in every refereed competition. For example, each umpire or crew of umpires has his/its own way of calling a game. In baseball, some umps enforce larger strike zones than do others. In football or basketball, some referees prefer the strict application of the rules while others prefer to “let ‘em play.” Either style can be just—so long as the calls are within the bounds of what is customary and both sides are permitted/required to play by the same take on the rules. On the other hand, using one style for one team and the other style for the other team is patently unjust. Proof that humans naturally consider biased officiating to be unjust can be seen on the faces of the outraged fans, and the sheepishness on the faces of the honest fans who know their team was the beneficiary of injustice.
This argument is not “whataboutism.” It is not saying that Trump can do something because others did something similar. Neither is it saying that arguments in favor of impeachment must be rejected because of the hypocrisy of the people making the argument. This is an argument that if over a long period of time “everyone” is doing something contrary to a dead-letter law and “no one” is punished for doing it, then it is manifestly unjust to suddenly and without reasonable advance notice resuscitate the dead letter law and punish people in reliance on the revived zombie law.
Things would be much better if presidents and other politicians were not incautious in their exercise of power, but “…the omission of a caution which would have been right, does not justify the doing what is wrong.” The Articles of Impeachment are an unjustifiable wrong.