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Reality Check: 'Shall Any Man Be Above Justice? The Answer Is No'

"Of all the impeachments in the American history to date, this one is closest to the Founders' worst fears," John Avlon said.
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John Berman introduced this Reality Check segment on this historic morning.

"We're hours away from the impeachment trial of the former president. You'll hear a lot of claims today, but know this: When it comes to some arguments, the Constitution doesn't say what they claim it says. John Avlon with the reality check," he said.

"Today, for only the fourth time in American history, a president will face an impeachment trial in the Senate. Now, Donald Trump accounts for half the presidential impeachments in American history, but this time he's facing a charge of inciting an insurrection. And that's the kind of high crimes the Founders contemplated when they put impeachment in the Constitution. But if you listen to some self styled constitutional conservatives, the Senate trial is over before it's begun.

Forty-five Republicans have said it's not even a legitimate proceeding. So it's really over before it starts.

"Here is why he's wrong. The vote Sen. Rand Paul is referring to is to debate whether it was constitutional to impeach the next president, not whether to go forward. Listen to Senator Rob Portman.

it was not about dismissing the trial, it was not discussing the constitutionality. I'm a juror, I'm going to keep an open mind as we go through this.

"More importantly, this question has been addressed because way back in 1876, a corrupt Secretary of War named William Bellnap was impeached after he resigned. He was charged with prostituting his high office to his lust for private gain. In addition, President John Quincy Adams -- someone well aware of the Founders' intent, made it clear that he considered himself accountable to impeachment for everything he did while in public office, for as long as he lived.

"So this should be a settled question, folks. A wonder that's backed by 170 constitutional lawyers, including a co-founder of the Federalist Society. And conservative lawyer Chuck Cooper wrote, 'Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former office holders, it defies logic to suggest the Senate is prohibited from trying and convicting former officeholders -- and all that is in addition to the fact that Trump was impeached before he left office, which also should ease concerns about any slippery slope.

"So yes, not only can Donald Trump be impeached, he already has been. Now it's up to the senators to be impartial jurors. The appropriately high two-thirds bar for conviction, which never been cleared in the case of a president, is no reason to disregard the proceedings, because of all the impeachments in American history to date, this one is closest to the Founders' worst fears. This isn't about disagreements about Reconstruction policies or lying under oath about an affair, or even trying to compel a foreign power to announce a bogus investigation into a domestic rival.

"Alexander Hamilton wrote that 'impeachment is for political offenses related to the abuse or violation of some public trust.' Professor Jeffrey Engel wrote in the book 'Impeachment', 'Impeachable offenses were, in the eyes of the Founders, those perpetuated with sinister intent to harm the Republic for personal gain.' Is there a better description for what Donald Trump did to our country by lying and allegedly inciting an insurrection in an attempt to overturn an election to hold onto power?

"As Founder George Mason asked during the Constitutional Convention, "Shall any man be above justice?"

"The answer is no. And that's your reality check."

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