Today, as most of you know, is the first day of the 2nd impeachment trial of Donald John Trump, the former President of the United States.
The presentation this week from the House Impeachment Managers is likely to use a lot of visuals, to tell a story, and to be intended to move our emotions, but in the meantime both the Impeachment Managers and the attorneys for Trump have filed legal briefs. Both briefs are between 75-80 pages long, and from these briefs we can get a good idea of what both sides will be arguing.
Constitutionality of Impeachment Proceedings
The Trump team will claim, of course, that the proceedings themselves are unconstitutional. They are on thin ground in that claim.
The first problem with this argument is that there are already plenty of cases where public officials were impeached after they left office.
- The first example is that of Senator William Blount, who was expelled in 1797 for trying to give the British control over parts of Florida and Louisiana, and who was impeached a year later despite already having been expelled.
- The second example is former Secretary of War William Belknap was involved in an elaborate kickback scheme in 1876. He resigned and was nevertheless impeached by the House within two hours of his resignation.
The second problem with this argument is that impeachment clearly allows for two different consequences, which is (1) removal from office and (2) disqualification from holding office in the future. Well, you cannot disqualify someone from holding future office until they’ve been removed from office in the first place, so part of the impeachment process, by necessity, needs to take place after the office holder has already been expelled.
The third problem, which is practical, is that if you could not complete the impeachment process after the office-holder has been expelled — and Trump was impeached by the House while he was still President — then you really would invite a President to engage in lawless behavior in the lame duck period between the election and before the inauguration of the new President.
Incitement to Riot
The Trump team will also be making the argument that what Trump said at the January 6th “Save America” rally wasn’t to be taken literally. Trump sprinkled the exhortations to fight and to be strong in various places of his 1¼ grievance marathon, and at one point even indicated that he expected his supporters to “peacefully” march on the Capitol.
I have previously argued that what Trump said that day might not lead to a criminal conviction. But the House Impeachment Managers don’t have to prove a criminal case. They only have to prove that Trump engaged in “high crimes and misdemeanors,” and what Trump did definitely qualifies. In addition:
- The House Impeachment Managers put Trump’s January 6th remarks in the context of his 77 day campaign to overturn the election.
- Not only did Trump not try to shut the insurrection down until after it was essentially over, he was clearly “delighted” in it while watching it on television.
As we all already know, impeachment is properly understood as a political and not a legal process, notwithstanding the legal window dressing. It will definitely be an uphill battle to get 17 of the 50 Republican senators to convict, although it’s not a complete impossibility. If the Democrats move the needle among the general public with their presentation, more of the Senators might be willing to gamble that the fervor of Trump supporters will wane.