Next Tuesday, the 9th of February, the Senate will begin the second impeachment trial of Donald Trump. With ten Republican Representatives voting in the affirmative, the House impeached the former president for inciting insurrection on 6 January, an insurrection that has resulted in the deaths of five people.
Trump supporters in Congress and around the country have viciously attacked the ten House Republicans who voted for impeachment. Wyoming Representative Liz Cheney, the third most powerful Republican in the House, has come under particular fire. Die-hard Trump disciples have petitioned Minority Leader Kevin McCarthy to remove her from her leadership post. That group is reported to have more than 100 signatories to its petition. The entire caucus will meet about this later today. It could happen that when the dust settles tonight, Liz Cheney, who, with Leader McCarthy’s approval, gave voice to her conscience, could become the only person to this point punished for anything that happened on the 6th of January. I make this point to illustrate just how far the devolution of Congress has progressed.
On the Senate side of the building, Trump’s latest lot of lawyers yesterday filed a 15 page initial brief that bases their defense of the former president on two major points. First, Trump did nothing wrong either before or during his 6 January rally in DC; he was simply exercising his First Amendment rights. Second, they contend it is unconstitutional to impeach Trump, because he is no longer in office and therefore cannot be “removed,” a view that is shared by most Senate Republicans ( there is also a third defense position – the Bill of Attainder defense – that is altogether too wacky to go into).
With respect to the first defense, the question before the Senators is whether Trump’s oratory was advocacy or incitement. The U.S. Supreme Court explained in Brandenburg v. Ohio (1969) that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Court’s ruling in Brandenburg meant that KKK leader Clarence Brandenburg’s statements such as “it’s possible that there might have to be some revengeance taken” did not amount to criminal syndicalism under Ohio law.
In addition to the “incitement to lawless action” charge, there is the “clear and present danger” test. In applying the clear and present danger test in Schenck v. United States (1919), Justice Oliver Wendell Holmes, Jr., observed: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes cited the example of a person who falsely shouts “Fire!” in a crowded theatre, causing a panic. The impeachment prosecutors will doubtless advocate that Trump really did, metaphorically, shout “fire” on 6 January, causing his followers to panic and storm the Capitol.
Regardless, the House Trial Managers are going to have great difficulty in convincing people who do not want to be convinced, in fact, refuse to be convinced, that Trump’s words at his rally on 6 January presented a clear and present danger to incitement to lawless action. This, despite the video and myriad recordings showing Trump egging on his followers to “fight” and “be strong,” because he “won in a landslide” and “the election was stolen” from him.
The Trump defense team’s second claim, that impeaching an out of office president is unconstitutional, will be equally difficult to counteract, even though the Congressional Research Service (the best research agency you’ve probably never heard of), at the request of House members, published a study on 15 January that showed clearly the precedence and constitutionality of such an action. The study, which is quite the civics history lesson, should be required reading for every high-school student.
In the study, Legislative Attorneys Jared P. Cole and Todd Garvey meticulously analyze this issue and write:
The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office.
They also note:
Scholars have noted that if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment is lost. If impeachment does not apply to former officials, then Congress could never bar an official from holding office in the future as long as that individual resigns first. According to one scholar, it is “essential” for Congress to have authority to impeach and convict former officials in order to apply the punishment of disqualification; otherwise Congress’s jurisdiction would depend on the whims of the individual who engaged in misconduct. Another scholar notes that the grave nature of the disqualification punishment indicates that it should apply independently of the need for removal.
Some Trump defenders point to the Richard Nixon case. When Nixon resigned on 9 August 1974, the House of Representatives had already drawn up articles of impeachment. After his resignation, the House did not send the articles to the Senate for trial. Less than a month later, President Ford granted Nixon a full pardon, thereby ending the case. The Trump defenders claim not impeaching Nixon proves their case that a president cannot be impeached after leaving office. What they fail to mention is that Nixon had already served two terms as president and was barred from running again by the 22nd Amendment. The whole purpose of impeaching someone after leaving office is first, to set an example, and second, to disqualify them from future office. Donald Trump, if not impeached and convicted, is free to run again for President in 2024.
Let me end on a hypothetical question. Suppose a President commits an impeachable action on the 19th of January; say it is discovered a week later that he or she had been colluding with a foreign power for personal gain at the expense of our nation. If the action is committed while in office, but not discovered until after he or she flies off in Marine 1, what is to be done about it? It is almost sacred theology that a President cannot be criminally charged for actions committed while in office (See the Mueller Report). How else is the miscreant punished other than impeachment?
I have no illusions about the Senate convicting Donald Trump of “high crimes and misdemeanors,” although I think he is guilty as charged. Further, I think he is responsible more than anyone else for the deaths that happened during and after the storming of the Capitol.
It is dispiriting for me to have to conclude that, rather than suffering one day of punishment for any of it, he will just live in the lap of luxury for the rest of his horrid life, the same mass of stunted protoplasm he has always been.
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