By David ThorntonFormer President Donald Trump’s unprecedented second impeachment trial will begin in a little over a week on February 9. As with any other issue these days, there is a lot of misinformation swirling around the impeachment and many of these claims need to be addressed.
Claim: Democrats impeached a private citizen.
This is a false claim. The House impeaches and it voted to do so on January 13, a week before Trump left office.
The Constitution says, “The House of Representatives… shall have the sole Power of Impeachment.” Therefore the impeachment was complete with the House vote while Trump was still president, regardless of whether the Articles of Impeachment were transmitted to the Senate after Trump left office.
Claim: Impeaching someone who is no longer in office is unconstitutional.
The Constitution does not specifically address the question of impeachments or trials for former officials, but the wording of Article I Section 3, which states, “The Senate shall have the sole Power to try all Impeachments,” also lays out the penalties that the Senate can invoke:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Logically, the Senate could not remove an official whose term has expired from office, so Trump is safe on that score. However, it is also logical that a former official could be disqualified by the Senate from holding future office.
Further, since the Senate has the “sole power” over impeachment trials, the Senate is the body that interprets the Constitution’s meaning. It did so yesterday in a vote that affirmed the Senate’s jurisdiction over former President Trump. Courts are unlikely to overturn this vote since the Constitution plainly gives the Senate the authority to decide the issue.
Historical precedent is also against Trump’s defenders. In America’s first impeachment, that of William Blount, the ruling is ambiguous, but the later trial of William Belknap is not.
In the impeachment trial of Blount, a senator who conspired in 1797 to help Great Britain gain control of Florida and Louisiana, then Spanish territories, the Senate ruled that it did not have jurisdiction, but the case is not as clear as it seems. Blount initially fled back to Tennessee and was impeached by the House in absentia. About the same time, the Senate voted to expel Blount.
Blount did not return for his Senate trial, which began in 1798, but lawyers did present his case. Two defenses were offered that attacked the Senate’s jurisdiction. The first was that a senator was not a “civil officer” under the meaning of the impeachment clause. The second was that, since Blount had been expelled by the Senate, he was no longer under the Senate’s jurisdiction.
The Senate ultimately decided that it lacked jurisdiction, but did not say why, although it is generally now understood that members of Congress are not “civil officers.” This is probably good news for Josh Hawley, Mo Brooks, and Andy Biggs. Neither defense would apply to Trump, however, since the Constitution explicitly gives the Senate the authority to try the president and Trump was never expelled.
The second precedent involves the 1876 impeachment trial of William Belknap. Belknap was Secretary of War under President Grant and was charged with taking kickbacks from defense contractors. Blount submitted his resignation shortly before the House voted to impeach him. The House still voted to impeach and the process then moved to the Senate where a majority voted to affirm the Senate’s jurisdiction. Ultimately, the majority vote against Belknap fell short of the two-thirds required to convict him and he was acquitted, partly due to the votes of senators who continued to dispute jurisdiction.
John Quincy Adams went even further, saying that he could be impeached for his actions as president long after leaving office. Adams proclaimed on the floor of the House, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”
Claim: The House denied Trump due process.
The impeachment process is not the same as a criminal trial. It is a political proceeding and due process is not guaranteed.
In Federalist No. 65, Alexander Hamilton argued that impeached officials risked only their power, not their freedom. Therefore, they do not enjoy the same rights as a private citizen before a court.
Some interesting reading on the subject of impeachment can be found in Chapter 27 of “House Practice: A Guide to the Rules, Precedents, and Procedures of the House,” a Government Printing Office publication that is available online. The guide says that the House empowers a committee to investigate the facts of the impeachment, but “may by resolution waive or supplement a requirement of these rules in a particular case.” When in doubt, refer back to the Constitution’s statement that the House has the “sole power of impeachment.”
The only place where the House guide calls for a defense by the accused is in the Senate portion of the process, stating, “The evidence against the accused is first presented by the managers. Evidence in defense is then presented by the accused, and the concluding evidence is presented by the managers. The accused is permitted to testify in answer to the charges contained in the articles.”
To use the metaphor of a criminal proceeding, the House phase of impeachment is similar to a grand jury, which hears and prosecutorial evidence only and decides if there is enough evidence to indict. The Senate phase is analogous to the trial, in which both sides present evidence and witnesses.
Claim: Trump’s actions were not criminal.
This is debatable. Legal precedent sets a high standard for incitement convictions. The Brandenburg test, established by the Supreme Court in 1969, requires that speech be both “directed to inciting or producing imminent lawless action,” AND “likely to incite or produce such action” to be criminal. Note that criminal intent is not a requirement. It is not clear that Trump’s speech meets this test, but it is also not clear that it does not.
Just Security has compiled a 10-minute video that shows portions of Trump’s speech and reactions of rioters. Nine former Justice Department officials and federal prosecutors say that the video “contains strong evidence that Trump did incite the insurrection, regardless of whether that was his intent.”
A criminal case for incitement would not be a slam dunk either way, but that isn’t the only possible criminal charge that Trump could face. The single Article of Impeachment for “incitement of insurrection” goes beyond Trump’s speech on January 6.
The Article also refers to “prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election” and specifically cites the example of “a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to ‘find’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.”
Federal law provides for fines and jail time for anyone who “knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process.”
Under Georgia law, “Any person who intentionally interferes with, hinders, or delays or attempts to interfere with, hinder, or delay any” election official performing their duty “shall be guilty of a misdemeanor.” It is also a felony in Georgia to “willfully tamper[s] with any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, or tabulating machine.” Further, solicitation to commit election fraud is also a crime.
Whether Trump could be convicted of any of these crimes is questionable, especially given the political climate of the country, but it is not a foregone conclusion that everything that the former president did was lawful.
Claim: Trump’s actions were not impeachable.
Impeachment has a lower bar than a criminal case for both charging and conviction.
The Constitution specifies that grounds for impeachment include “Treason, Bribery, or other high Crimes and Misdemeanors.”
US law states, “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason…”
It might be tempting to say that Trump’s provocation and reaction to the insurrection would constitute treason, but the rioters are being charged with the slightly different crime of “sedition.” Findlaw.com explains, “While seditious conspiracy is generally defined as conduct or language inciting rebellion against the authority of a state, treason is the more serious offense of actively levying war against the United States or giving aid to its enemies.”
In American history, several people who plotted to overthrow the government have been charged with sedition. Treason has typically been reserved for people who were in active armed rebellion against the United States or who sided with America’s enemies in times of war. The first list includes John Brown and participants in the Whiskey Rebellion. The second includes propagandist “Axis Sally,” several defectors to Nazi Germany, a Detroit man who harbored an escaped German POW, several people who aided Nazi saboteurs, and a man who spread Nazi propaganda.
“High crimes and misdemeanors” has a much more broad definition. Contrary to popular belief, the term does not imply criminal conduct but comes from English common law. The Federalist Society points out that the Framers understood the phrase to mean “mal-administration of such high officers, as are in public trust and employment,” and that such maladministration could be criminal or noncriminal.
At the constitutional convention, James Madison gave several possible grounds for impeachment, such as, “He might lose his capacity after his appointment, he might pervert his administration into a scheme of peculation or oppression, [or] he might betray his trust to foreign powers.”
The House guide agrees and adds that the “offense must be serious or substantial in nature to provide grounds for impeachment.” In fact, many of the individuals impeached by the House throughout our history did not commit crimes but did commit serious noncriminal offenses. “Abuse of power” was a common charge although one judge was impeached for intoxication on the bench.
If President Trump’s two-month crusade to convince his supporters that the election was stolen and overturn its results, a crusade which culminated in a crowd that came to Washington at his request and attacked Congress in an attempt to stop the counting of electoral votes, does not constitute an impeachable act, then nothing does. In American history, many others have been impeached for less.
Claim: Trump’s impeachment will lead to the impeachment of other former presidents.
This is a nonsensical argument. There is a big difference between Donald Trump and slaveholding presidents of yore or whichever example you might cite: Donald Trump is still alive and eligible for another term. No other former president meets those two criteria.
Claim: Impeachment is pointless and/or needlessly divisive.
This is another matter of opinion, but it is a red herring designed to let Trump escape accountability. The inescapable conclusion is that people who make this argument believe that Trump’s two-month campaign to steal the election that culminated in a riotous insurrection was not divisive but punishing him for his actions is.
This would be akin to offering the defense that a murderer should not be prosecuted because convicting him would not bring the victim back to life. The lawyer for the accused might argue that putting the murderer on trial would only cause the victim’s family more pain and suffering.
In reality, there is a very important reason to continue the impeachment process, namely that it would disqualify Trump from holding office in the future and prevent him from attempting a similar coup in years to come. Like the trial of the murderer, the impeachment trial is both a punishment for past actions and a means to prevent similar acts in the future.
Conclusion
Republicans believe that a president cannot be punished for criminal acts while in office because sitting presidents cannot be indicted, that impeachment requires a criminal act, and that presidents who are near the end of their term because Congress loses jurisdiction when they leave office. Taken together, these arguments betray the fact that they believe that presidents are above the law and cannot be held accountable. But is there any doubt that these arguments would not apply to any other president but Trump?
The truth is that the Founders feared that the presidency would become too powerful and that chief executives would abuse their power and not be held accountable. That is exactly where we are today. If Republicans vote to acquit Donald Trump, and they will, it will be with an eye toward partisan power and flagrant disregard for the Constitution and the original intent of the Framers.
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