Today marks the first day of Donald Trump’s second impeachment trial. The history-making trial will serve as the first time that a president has been tried after leaving office and the first time that a president has been tried twice in the wake of two impeachments.
While this impeachment has thus far garnered more bipartisan support than the last (with 10 Republicans joining Democrats in impeaching Trump in the House), it remains unlikely that Trump will be convicted in the Senate. Conviction would require a two-thirds vote, and senators fell far short of that threshold when voting upon whether or not such a trial would even be constitutional. If the Senate did vote to convict, however, barring Trump from holding any “Office of honor, Trust or Profit under the United States” would require just a simple majority.
In making the case for impeachment, we think it best to examine common Republican defenses. After all, as we said in last week’s opinion piece, sometimes the best offense is a good defense.
So let us first discuss the defense listed above, the one likely to serve as the cornerstone of Trump’s defense at trial:
Impeaching a President Who No Longer Holds Office Would Be Unconstitutional
As Trump’s legal team said in its response:
“The constitutional provision requires that a person actually hold office to be impeached. Since the 45th President is no longer ‘President,’ the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution. Article I, Section 3 of the Constitution states ‘[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor…’ (emphasis added). Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, ‘disqualification’ to hold future office, the fact that the Senate presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.”
This argument might be persuasive but for established precedent.
First, there has been much discussion over the idea that a private citizen cannot be impeached after leaving office. But Donald Trump wasn’t impeached after leaving office; he was impeached prior to the end of his term. What is left now is the trial related to that impeachment. And while Trump’s defense attorneys attempt to place Article II at the forefront of the discussion, it is Article I that is most useful when attempting to determine the full scope of Congress’ impeachment power.
Indeed, as quoted above, Article I, Section 3 of the Constitution states that judgments “shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor.” But to suggest that the two punishments are inextricable from each other is to ignore proper context. Here, it is important to make note of the phrase “shall not extend further.” This portion of the text necessarily implies that this is the harshest possible punishment, not the sole possible punishment. Inarguably, it is possible to convict a president and not bar him from holding future office, so it seems illogical to marry the two punishments in permanence. So, too, does it seem illogical to suggest that one necessarily serves as a prerequisite to the other, simply because it appears first sequentially. Such a reading would alter the meaning of numerous other provisions, in a way that would run counter to established intent.
Ultimately, the Constitution places no express limitation on Congress to try only those impeachments of sitting officials who remain officials at every stage of the process. In fact, Article II states that the Senate shall have sole power to try “all impeachments” (emphasis our own), with no reservation or limitation. Thus, as the impeachment of Donald Trump was, in itself, inarguably permissible, as it occurred while he was still in office, it follows that the Senate has the power to try him.
And, as previously mentioned, this interpretation is consistent with established precedent. In 1876, then-Secretary of War William Belknap was impeached by the House hours after his resignation. In the ensuing Senate trial, Belknap, too, attempted to argue that the Senate lacked jurisdiction to convict, now that he was a private citizen. The Senate was as unmoved by this argument then as we are now. Formally considering the issue, the Senate decided in a 37-29 vote that he was “amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.” And while the Senate ultimately chose not to convict on the merits, precedent on the procedural matter had been established for future proceedings.
From a policy perspective, this makes sense. If individuals could resign from office following impeachment and not be subject to punishment, it would set a potentially damaging example. Presidents could run out their terms by attempting to overthrow the government — becoming dictators in success or simply resigning in defeat. And if there were no constitutional protections against barring them from future office, they could continue to run for positions of honor, trust, or profit, in spite of their treasonous past.
Ultimately, there is a reason why the framers did not provide solely for removal from office but for disqualification from future office, as well, and it is because the latter serves as a critical safeguard against future harm — harm that would not be guarded against if an individual could simply resign and evade accountability or punishment.
Which brings us to argument number two:
Donald Trump’s Actions Did Not Amount to Incitement
It has been argued that Donald Trump’s words on the day of the Capitol breach did not amount to incitement. That they ran parallel to typical political rhetoric, the bastardization of which could be no fault of his own. That words like “fight” are used regularly to refer not only to acts of violence but to determination and resolve. And that, while perhaps irresponsible, it was all mere hyperbole and balderdash, which was corrupted beyond its original intent.
But such an argument ignores both the other sentiments expressed during the rally — sentiments that did not constitute normal political rhetoric — and the words and actions of Donald Trump in the years and months leading up to January 6.
Indeed, the rally that preceded the “March to Save America” had Trump’s fingerprints all over it. He planned it in concert with permit-holder Kylie Kremer, promoting it on his social media and discussing everything from the speaking lineup to the music to be played. And while the original plan had nothing to do with marching to the Capitol, that changed following discussions with the White House.
And the speakers at this rally did not limit themselves to normal political rhetoric; instead, packing their speeches with incendiary language. Rudy Giuliani, the president’s attorney, called for “trial by combat.” Donald Trump Jr., the president’s son, said of those Republicans in Congress who failed to back his father, “We’re coming for you.” And GOP Rep. Mo Brooks told the crowd, “Today is the day American patriots start taking down names and kicking ass.”
Now, one might argue that it would be unreasonable to hold Donald Trump responsible for the words and actions of others. But the law has long accepted that this is not always the case. Vicarious liability, accomplice liability, aiding and abetting: these are all accepted legal theories on which liability is imposed for the acts of another. In fact, Donald Trump spent much of his final few months in the White House advocating for the revocation of Section 230 of the 1996 Communications Decency Act, which shields internet service providers and social media companies from liability over the speech of their users. To Trump, it would not be unreasonable to hold tech companies responsible for user-generated material. To Trump, the powerful have a duty to ensure that those individuals whom they give a platform to are not acting irresponsibly.
That, or he just doesn’t like his posts being fact-checked.
Regardless, whether you view Donald Trump as responsible for the overall tenor of the event or merely for his personal contribution to it, in the end, it comes down to intent. As GOP Sen. John Cornyn said, “What we need to hear is what really the president intended, because incitement is really about your intention.”
So what can we deduce about Donald Trump’s intent?
First, we must consider the fact that Donald Trump lied to the American public for months. Long before the election even took place, Trump began stoking fears about election integrity, and for months after it was called, Trump lied about his legal team’s findings and the assertions that they were making in courts of law. The former president would tell his supporters that they had uncovered evidence of rampant fraud, only to turn around in court and expressly admit that they were not alleging fraud at all.
What was the point of this disinformation campaign, if not to incite an uprising? And if incitement was not the original intent, was it not at least foreseeable?
In December, I wrote the following:
“The president and his allies continue to allege widespread fraud in press conferences where they are shielded by the protections of free speech, only to turn around and explicitly state that they are not alleging fraud when in court under penalty of perjury. That being said, they are brazenly lying to the general public about the sanctity of our elections, and it would be injudicious to view it as anything but incitement.”
Having personally labeled Trump’s acts as incitement more than a month before the riot, it would be impossible for me to argue that such an uprising was not a natural consequence of his continued lies, as it was comfortably predicted by many. And Trump knew this. In December of 2020, the FBI issued a bulletin warning of the potential of armed protesters targeting legislatures. The Joint Terrorism Task Force had been notified of possible impending violence at the Capitol. And “Stop the Steal” — a group co-founded by Amy Kremer, one of the planners of the “March to Save America” — posted in December about its plans to occupy the Capitol, with other co-founders promising to “escalate” if met with opposition.
So either Donald Trump was well aware of the potential for violence, or he was grossly negligent and derelict in his duties.
I would assume the former.
And what did he do with that knowledge? Did he concede? Did he participate in the peaceful transfer of power? Abandon his series of lies? Attempt to lower the temperature and quell the uprising?
He proceeded to lie to the American public, to summon angry supporters to Washington, to call on rally-goers to march on the Capitol, and to tell his captive audience that they would never take back their country with weakness because you have to show strength.
He knew how that directive would be interpreted. After all, it was preceded by years of context.
In an interview, for example, Trump once equated “weakness” with a lack of aggression towards protesters. “That will never happen with me. I don’t know if I’ll do the fighting myself or if other people will,” he said.
At a rally not long thereafter, he said that he would be “a little more violent” when addressing protesters in the future. And he continued to advocate violence against protesters at subsequent rallies.
“Maybe he should have been roughed up, because it was absolutely disgusting what he was doing.”
“If you see somebody getting ready to throw a tomato, knock the crap out of them, would you? Seriously. Just knock the hell out of them. I promise you, I will pay for the legal fees. I promise.”
“I’d like to punch him in the face … You know what they used to do to guys like that when they were in a place like this? They’d be carried out on a stretcher, folks.”
In a series of statements that spanned multiple rallies, Trump repeatedly encouraged his supporters to commit violence on his behalf. And many appear to have followed through, as a number of people have invoked Trump’s name when explaining the motive behind their crimes.
Of their decision to urinate on a homeless man and beat him with a metal pipe, one attacker said, “Trump was right. All of these illegals need to be deported.” (Trump, in response, proceeded to call his supporters “passionate.”)
A 78-year-old Trump supporter, in the wake of Trump’s calls to violence at his rallies, punched a black protester and parroted Trump’s rhetoric, stating on video that he enjoyed “knocking the hell out of that big mouth” and saying, “Yes, he deserved it. The next time we see him, we might have to kill him.”
In the wake of Trump’s bigoted commentary on the Muslim community, one of his supporters physically attacked a Muslim Delta employee at John F. Kennedy International Airport, telling the victim, ““[Expletive] Islam. [Expletive] ISIS. Trump is here now. He will get rid of all of you.”
And when Cesar Soyac mailed improvised explosive devices to Democratic officials, his lawyers told the court that their client’s actions had been fueled by Trump’s rhetoric and that he had regarded Trump as a “surrogate father.”
Similarly, when a man was charged with felony assault for choking, slamming, and fracturing the skull of a 13-year-old boy who did not remove his hat for the national anthem, that man’s attorney, too, blamed Trump’s rhetoric, saying, “His commander in chief is telling people that if they kneel, they should be fired, or if they burn a flag, they should be punished.”
All the while, the incidence of hate crimes continued to rise, reaching a 16-year high in 2018.
Given the above, it is impossible to argue that Trump did not appreciate the import of his influence, and with that power came great responsibility. And yet Trump did not exercise a modicum of responsibility. Instead, he continued to stoke anger with easily disproven lies and called his supporters to action.
Trump refused to relent even after the Capitol’s breach, sending false and incendiary tweets about Vice President Pence, as chants of “Hang Mike Pence” rang out amongst his supporters.
In the end, as a police officer was being killed, Trump told the rioters that they were “very special” and that he loved them, and he later minimized the riot as “the things that happen” when [insert election lie here].
These are not the actions of a man whose rhetoric got away from him. Who feels deep regret over the crimes of his supporters — crimes he doubtless inspired. This is a man who had been orchestrating such an attack for years, beginning with his earlier calls to violence and ending with a lie that was sure to galvanize it.
We cannot allow any person, no matter his position, to inspire these acts of terrorism, and we cannot wave away his involvement simply because he has been voted out of office. We must hold accountable those who actively work to undermine our democracy, lest we give way to a more successful assailant and inevitably lose our grip on it.
For Donald Trump is guilty of incitement of insurrection, and the Senate should vote accordingly.