As far as I have been able to uncover, defense of Trump against the impeachment charges fall into three categories.
First, some, like Rand Paul (who I have agreed with on many occasions in the past) are arguing that impeachment of a former official is unconstitutional. The US Constitution states in Article II, Section 4, that “The President . . . shall be removed (present tense) from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The “it is unconstitutional” argument equates the “shall be removed” clause with “shall only be removed from office.” Obviously this would limit action to those currently in office. Yet, there is no language saying that impeachment is “limited to” or “is only applied to” incumbent office-holders.
Andrew C. McCarthy, a Republican former-Federal prosecutor who is now a contributing editor to National Review (NR) (which is a flagship conservative news organization), points out that Article I, Section 3 also includes disqualification from future office as a penalty for being convicted in a Senate impeachment trial. Why is this important? For one, the Constitution does not define impeachment solely within the language of Article II, Section 4. Any discussion of constitutionality has to consider both Article II, Section 4 and Article I, Section 3; you cannot simply choose the one that suits your goals to the exclusion of the other. Secondly, McCarthy points out that the Framers specifically limit the penalty of impeachment to 1.) removal from current office and 2.) disqualification from future office. He argues that this proves the Framers’ willingness to be specific in some instances and when they are not, a broader, pragmatic interpretation, referring to intent, legal precedent and other text, is required:
“Also notice that we can say with certainty that removal and disqualification are the only two impeachment penalties. How do we know? Because Article I, Section 3 explicitly says so. Why is that worth noting? Well, it suggests that when the Framers wanted to write a clear exclusion, they did so. But they did not write one excluding former officials from impeachment — and at the same time took pains to include a disqualification penalty that would make it rational to impeach a former official even if the official could no longer be removed. (https://www.nationalreview.com/corner/more-on-the-constitutionality-of-impeaching-ex-officials/ )
To be clear, McCarthy is not arguing that Trump should be found guilty. He is simply saying one cannot claim that the Senate impeachment of a former president is unconstitutional on the basis of the text. In short, there is no language making a former official immune to impeachment.
Expanding on these points, another opinion writer at NR, Jason Lee Steorts, argues that a pragmatic reading of articles of impeachment is required because the Framers clearly intended this process to bar bad people from holding office:
“One of the things they decided was: Hey, let’s make it possible for Congress to stop a dangerously rotten official from ever, ever, by golly we mean ever, holding office again. … that purpose would have been defeated if dangerously rotten officials had been allowed to escape disqualification just by resigning from office before they could be impeached and tried; or by — I have not seen this mentioned, but probably it has been — delaying their worst conduct (of an election-stealing variety, say) until there wasn’t much time left to get rid of them. So it only stands to reason that the Framers should be read as having meant, pragmatically, that former officials may be disqualified.” (https://www.nationalreview.com/corner/why-the-constitution-does-not-contradict-late-impeachments-explained-with-droll-elucidations/?itm_source=parsely-api )
Second, there is room to debate the cause and effect relationship between what Trump said on January 6th and the unlawful actions of the mob. This goes to the legal definition of incitement. This is otherwise known as the “he didn’t make them do it” argument. Others frame it as free speech. It is true that he did not specifically direct, request or suggest that any of the mob become violent, vandalize or otherwise disobey laws. But they clearly interpreted his speech that day and at every point since the November 2020 election as a call to arms, a request by their President to “take back” their government and “never concede.”
Third and last, while acknowledging that the mob was “misguided” and unlawful, some have argued that the events of January 6th do not qualify as an “insurrection.” Much of this appears to hinge on whether it was practical for those gathered to expect their actions would make a difference; they argue that the mob could not have successfully brought about a coup and thus was not an insurrection. However, 18 U.S. Code 2383 defines a rebellion and/or insurrection as: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” “The authority of the United States” that Trump is acting “against” in this case broadly is the democratic election results from November 2020. More specifically, on the day of the riots, he is directing actions “against” the process of the US Senate counting the electoral votes that had already been lawfully certified by each state. Stated differently, Trump was calling, as a Republican, for the Federal government (the VP and the Senate) to arbitrarily reject the will of the states. Strange space for a Republican (i.e. one who recognizes the primacy of “republic” in the balance between Federal and state power) to occupy. It will be interesting to see how Cruz and Hawley square that circle going forward.
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For this writer, the order of causation flows accordingly:
- Trump has clearly and repeatedly claimed that the election was “stolen” and that Biden is not the lawfully elected president. This is an extremely inflammatory position for a president to take and would be reasonably expected to make a portion of those who truly believe it angry and violent.
- This claim was rejected repeatedly by the courts.
- His legal representatives made numerous wild claims, including that Venezuela had hacked vote-counting technology used in several states, claims they did not actually support in any evidentiary proceeding.
- In response to the accusations being made by Trump, thousands of people gathered on January 6th, 2021 to protest the election results.
- Trump called for Mike Pence to intercede on his behalf and was asking that his supporters “fight” and “never concede.” He called Republicans not willing to overturn the election results “weak.”
- While undoubtedly a small percentage of the whole, many of those protestors, motivated by Trump’s accusations, then marauded through the Capitol building and committed a wide variety of crimes and in the process five American citizens lost their lives.
Those who still support Trump are free to quibble about the relationship between items 1-5 and the outcome described by point 6. Remember, Trump’s famous words in January 2016: “”I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” Those supporting Trump in his post-election, scorched-earth mode are simply acknowledging the truth of that statement. The most gifted Sophists and moral relativists can parce out the meaning of “fight” and “never concede” or what is required to be guilty of “incitement.” Trump was clear in his request that Pence overturn the election, an act that Pence and the vast majority of legal scholars have said the VP has no power to do. But those people gathered on January 6th believed Trump. That is why they were there! They believed that there was something that could be accomplished that day. But hey, “that’s just Trump running his mouth…those people did not have to take him seriously.”
Yes, Trump was running his mouth as he has his entire life and the words incitement and insurrection indeed sprinted on out, hiding in plain sight amidst the bombast and demagoguery, like motivation coaches urging the marathoners to keep going.
It is tragically ironic that “rule of law” conservatives will be making their stand on flimsy, linguistic equivocations. This is the kind of manipulative evasion of plain truth via legalese previously criticized by conservatives but we all know what many Republicans have now come to think about standards of conduct and previously held values. Too many of them have made Trump their North Star to the abandonment of everything else.
If we allow the “we can’t impeach an ex-president” argument to stand, we are potentially setting the precedent that defeated presidents can incite riots as long as they time it well and are confident that their support in the Senate will delay an impeachment proceeding until the current term has elapsed.
It is my understanding that “high crimes and misdemeanors” is a term of art that extends beyond acts specified in US law. McCarthy argues that impeachment is a political process to be used at the discretion of Congress, not a legal one mediated by the judicial branch and the details of law. It was designed by the Framers to give Congress the ability to hold wayward officials in check. The Framers clearly intended impeachment to prevent bad actors from holding office and give Congress the broad authority to make pragmatic judgements about what types of actions are disqualifying.
In my view, Trump likely did not technically “incite” the illegal acts on January 6th but the other arguments are specious. There is nothing in the US Constitution that states ex-presidents are immune to impeachment. The mob was not capable of a coup but their actions do qualify as an insurrection. By calling for the vice president and congressional Republicans to reject the votes certified by the states, Trump was urging an unconstitutional act, which is sufficient grounds for impeachment. He does not have to be guilty of incitement to be found guilty of an impeachable offense.
I understand those who, like Senator Paul, are concerned that convicting Trump will set a dangerous precedent for political revenge for inflammatory but otherwise constitutionally protected speech. Yet, it should be clear that the events of January 6th, 2021 are of a singular nature and require that we indeed set a precedent- one where presidents are held accountable for their words regardless of the timing of those words to leaving office. That is the prime directive for Congress and Senator Paul and others need to come up with better arguments or simply state that they are afraid of the fallout from Trump and his supporters.
If not for unconstitutional acts that lead to death and the pillaging of our nation’s Capitol building, what is impeachment to be used for?
