Senate president will act as presiding officer

Editor’s Note: The following is a news release from the office of Senate president Jude U. Hofschneider (R-Tinian):

The Senate is proceeding with its constitutional duty to conduct a hearing on the impeachment of Gov. Ralph DLG Torres despite the continued obstruction of the House of Representatives. Vice Speaker BJ Attao’s recent statement declining to act as House impeachment prosecutor demonstrates the vice speaker’s refusal to recognize the division of duties the Constitution describes in the context of impeachment. The Constitution does not require the House of Representatives to act as the impeachment prosecution. The Senate drafted rules that afforded the House the opportunity to act in that capacity as we felt they would be prepared to present the arguments they have so forcefully advocated in the press. It appears now the House is not equal to the task of confronting the opposing defense against those articles and is advancing any excuse to slow the impeachment process. The Senate will not be deterred.

Deadlines are not going to be extended any longer. I accept vice speaker Attao’s March 21, 2022, [letter] as a declination to serve as House impeachment prosecutor. I will name the impeachment prosecutor for the House pursuant to Rule 7(a)(2) of the Senate Rules of Impeachment. The House may, as is its prerogative, continue to refuse to appear in the impeachment hearing. The absence of a House impeachment prosecutor will not serve to end the proceedings of impeachment. Upon the date set for hearing the presiding officer will call the hearing to order and call upon the parties to present their cases. If no prosecutor is present to make the arguments before the Senate, the hearing will proceed on the record as it exists at that time.

Constitutionality

Perhaps the most glaring example of the vice speaker’s own lack of understanding of the law and the Constitution is his insistence that the House has some constitutionally mandated role to perform in the upcoming hearing in the Senate. The vice speaker cites no language in the Constitution, nor would it be possible for him to do so, where the members of the House are assigned a role in the Senate’s hearing. There is no such language in the Constitution. The NMI Constitution, Article II, Section 8 provides that “[t]he House of Representatives may initiate impeachment proceedings by the affirmative vote of two-thirds of its members and the Senate may convict after hearing by the affirmative vote of two-thirds of its members.” Article II, Section 8 governs how the work is to be divided. The Senate had no role to play in the initiation of the proceedings in the House. The House could have, if it so desired, given a role for the Senate to play in their own impeachment hearings. They did not. The Senate did not complain of a lack of fairness or a non-existent lack of constitutionality. Similarly, the Constitution does not direct the House be the prosecution of the impeachment hearing. In the interest of a complete hearing, the Senate chose to include the House members in the hearing of the evidence against the governor. If, as has been suggested, the Senate wished to slant the evidence in the governor’s favor, the rules should have been written to exclude the participation of the House members from the Hearing completely. We chose, instead, to include the House.

The process of drafting the work was the work of two committees, the Committee on Executive Appointments and Government Investigations, chaired by Se. Francisco Q. Cruz; and the Committee on Judiciary, Government, Law, and Federal Relations, chaired by Sen. Karl R. King-Nabors. The joint committee presented its draft rules to the full Senate for adoption after public comment and comment by the members of the Senate. All members of the Senate had ample opportunity to comment and offer amendments to the proposed rules. No member of the Senate proposed any amendments to the rules which would have affected identification of the impeachment prosecutor. The Senate, as a body, found the rules as promulgated to be constitutional, fair, and balanced.

To further muddy the waters, the members of the House continue to suggest the rules somehow permit the appointed committee to dispose of the Articles of Impeachment directly in violation of the Constitution. This appears to be a purposeful misreading of the rules in an effort to provide misinformation to the public. In any rational reading of the Rules of Impeachment, the only way the Articles of Impeachment are disposed of is by a vote in the full body of the Senate requiring a two-thirds vote in order to convict. This requirement conforms to the requirements of the Constitution for conviction upon impeachment. I am at a loss to explain the continued insistence of the members of the House on promulgating blatantly false information to the public.

It is also apparent that vice speaker Attao takes a contorted view of case law as it applies to impeachment when it does not conform to his narrative. The center of the discussion about the Senate rules of impeachment has been the case of Nixon v. United States, 506 U.S. 224 (1993). In Nixon the Supreme Court of the United States was asked to decide whether the impeachment of a judge was constitutional where the hearing was conducted in committee as opposed to the full senate. The evidence of the impeachment was presented to a committee and reported to the full senate for vote, just as the Rules of Impeachment permit in Gov. Torres’ impeachment hearing. The judge, who was impeached, complained to the Supreme Court saying the Rules violated the Senate’s authority because it prohibited the “whole Senate from taking part in the evidentiary hearings.” The Court disagreed. The Supreme Court held that the Senate had the authority to craft its rules as the Senate saw fit and that the court could not and would not review the Senate’s decisions. The Senate has drafted rules in conformance with the Constitution. The House may believe the rules to be unfair. The vice speaker confuses the concept of unfairness to his agenda and narrative to be the same thing as unconstitutional. If the vice speaker is convinced he has an argument against the holdings of Nixon, the correct course of action is to request a review before our Supreme Court, not to misstate the holdings in a misguided attempt to discredit the Senate. I am confident the Court will agree with the holdings of Nixon and find the Vice Speaker’s claims of unconstitutionality to be unfounded.

The distractions from impeachment

The vice speaker continues to attempt to confuse the people of the CNMI by creating a false narrative of Attorney McDoulett’s assistance to the Senate. Of special concern is the conclusion that “it is beyond dispute that only the Legislative Bureau legal counsel can provide legal assistance to the CNMI Legislature in sessions and committee meetings.” Such a statement is a tortured reading of the Constitution at best. Rep. Christina Sablan, as a member of two special committees devoted to the investigations of the charges against Gov. Torres, hired private counsel Charity Hodson for legal advice. At the time, Rep. Sablan stated, “I thought it was important to have independent counsel outside of the Legislative Bureau.” It is hypocrisy on the part of the members of the House to decry the hiring of independent counsel when it has been a common practice of the House in the context of this very impeachment. What is beyond dispute is that the vice speaker and other members of the House are eager to pursue any distraction to avoid a hearing in the Senate.

Another well-worn complaint from the House speaker is related to the Open Government Act. At no time did the Senate willfully violate the OGA. Nor was there any impact on the public’s ability to view and evaluate the proposed rules of impeachment. To the contrary, the public was afforded opportunity to speak at both sessions involving the proposed rules of impeachment. These arguments are another example of the vice speaker and other members of the House actively avoiding the true issues of presenting a valid case in an impeachment hearing. The Senate’s only focus is to proceed with the hearing of impeachment.

Finally, much has been made of Sen. Nabors’ contact with attorney Alepuyo prior to her engagement by the governor as his counsel. Sen. Nabors has explained to the public and the Senate leadership his contact with attorney Alepuyo. Vice speaker Attao claims that this contact with attorney Alepuyo renders any product of the joint committee overseeing the drafting of the rules unconstitutional because vice speaker Attao believes any contact with an attorney falls under his newly invented constitutional prohibition against any member of the Legislature seeking advice from an attorney outside of the Legislative Bureau. As already noted, members of the House have made it a common practice to consult and hire independent counsel. To also suggest they must never speak or consult with an attorney privately is simply a ridiculous argument. In any event, the only measure of the Rules’ constitutionality is the content of the rules as written.

Conclusion

The only thing impeding a “fair, diligent, and speedy impeachment trial” is the unreasonable conduct of the members of the House. The vice speaker and other members of the House appear to seek a trial of the governor in the court of public opinion but do not wish to allow evidence to be heard against their conclusory allegations. The Senate, on the other hand, is determined to have a hearing on the impeachment. To effectuate that goal, I will discharge the Special Committee on the Impeachment Hearing pursuant to Senate Rule 7, Section 1. I do not discharge the special committee because it is unconstitutional or because any senator has acted inappropriately. I do so only to encourage the House to participate in the impeachment hearing by eliminating one of the unjustified concerns expressed by vice speaker Attao and other members of the House. The Senate will proceed to hold the hearing before the entire body in accordance with Rule 3(a) of the Senate Impeachment Rules. I will act as the presiding officer for the hearing before the full body of the Senate. A hearing date has yet to be set. I invite the House of Representatives to suggest one of its members who would be willing to present the case against the governor. I will recognize that member in accordance with the authority granted to me by the Constitution and Rule (7)(a)(2). Should the House refuse to participate, the hearing will proceed.