Tag Archives: bill of attainder

What Is A Bill Of Attainder And Why Is It Important?

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Our Founding Fathers understood what it was like to live under a king. They also understood what it was like to live under a government that not only did not represent you, but could target you at any time. They wanted the new government they founded to represent the people and protect the people from the government.

On Tuesday, The American Spectator posted an article that points out that the continued lawfare against President Trump violates the law against a bill of attainder.

The article reports:

Yet so common was the bill of attainder in British history in pre-modern times that it was a fairly normal way of dealing with the rebellious — or, indeed, just those whom the authorities found uncongenial. And so much did the Founding Fathers dislike its use that they deemed it important enough to have its own mention in the Constitution, which expressly forbids it under Article I, Section 9, Clause 3: “No Bill of Attainder or ex post facto Law shall be passed.”

But what is this strange creature?

The word “attainder” derives from the adjective “attainted,” which was used to define individuals whose legal rights had been removed. All of them. They lost the right to own property and bear titles; they could not enter into legal agreements, nor could their heirs inherit from them. They were often summarily executed, and they forfeited all their possessions to the state, in this case the Crown, or as much of it as the rulers could get their hands on. What makes bills of attainder unique in legislation — and insupportable — is that they imposed draconian penalties on specific individuals without the need to find them guilty in a court, for they had lost their right to a jury trial or, indeed, any trial at all.

Now, if this sounds hauntingly familiar in modern America, that’s because it should. Bills of attainder may be unconstitutional, but acting in ways essentially equivalent apparently is not.

Consider the lawfare being directed at Trump. Only the naïve or the prejudiced could seriously believe that the indictments leveled at him would be directed at anyone else. They’re aimed at one man, and his first name is Donald, his last name Trump.

Enter Judge Arthur Engoron, and the indictment for fraud brought by New York Attorney General Letitia James.

This case is astonishing on so many levels. First, no one is claiming injury here: Banks loaned money to Trump based on the value of his assets. Trump repaid the loan, with interest. The banks had not the least inclination to sue him, since they had suffered no injury.

The article notes:

If one were of a suspicious mind, one might surmise that Engoron imposed the most massive fines he could in order to make it as hard as possible for Trump to appeal his ruling.

Surely not!

Now consider how similar this is to a bill of attainder. First, such a bill removes the legal rights of the target. Engoron has made an appeal against his ruling as difficult as possible. Further, draconian penalties have been imposed on Trump without the need to find him guilty of anything in court. As with a bill of attainder, the target’s ability to hold offices and function is withdrawn. His property is seized and removed from his control. Finally, since there is no aggrieved party claiming redress, the Crown — the state, in this case — takes the wealth forfeited. His heirs are punished — not for what they did but because they are his sons.

This is a bill of attainder in fact, if not in name. It differs only in that it comes from a court rather than a legislature.

Obviously the wrong people are on trial.

Perspective From A Brilliant Legal Mind

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On Monday, The Washington Times posted Alan Dershowitz’s response to the January 6th Committee’s final report. The Committee voted unanimously Monday to refer four charges to the Justice Department for prosecution: inciting the attack on the Capitol, obstructing an official proceeding of Congress, conspiracy to defraud the government, and making false statements on fake presidential electors. That is not a surprise considering that the Committee purposefully looked at only one side of the evidence and included only people who were out to destroy President Trump. Alan Dershowitz’s reaction was interesting in that he relied on the law as the basis for his statement–something the Committee chose not to do.

The article reports:

According to Mr. Dershowitz, the panel operated against the spirit of one of only two civil-liberties provisions in the original Constitution, before the Bill of Rights was added — a ban on “bills of attainder.”

That provision banned Congress from passing indictments of unpopular people by name.

…Mr. Dershowitz, a liberals who twice voted against Mr. Trump but has become a vocal critic of liberal attacks on him, suggested that “the Justice Department should reprimand Congress for even trying to suggest who should be prosecuted.”

He acknowledged, though, that the Justice Department under President Biden would likely not do that.

“I don’t expect it to happen. I would hope it would happen. I do expect that they won’t take it seriously,” he said before outlining what he thought a properly operating non-political Justice Department would do.

“Don’t tell us who to investigate and who to prosecute. You had a kangaroo hearing. One-sided. You didn’t allow a cross-examination. You didn’t allow any adverse witnesses, so don’t expect us to take seriously any recommendations you make about prosecution. The American public should make no conclusions based on this one-sided recommendation and it should ignore it as well,” Mr. Dershowitz said.

It’s “worthless. It’s a worthless piece of paper,” he added.

It’s a shame that taxpayer money was spent on this sham committee. There are a lot of unanswered questions about January 6th (such as the involvement by the FBI, why Speaker Pelosi refused extra security, etc.) that should be explored, but this committee worked very hard not to investigate those questions.