Turning Down the Heat on Impeachment

The now closed impeachment of former President Donald Trump presents a unique conundrum. While most votes in the Senate had been predecided on political lines before the trial began, any truly undecideds and much of the general public following the trial were confronted by the difficult task of balancing emotions wrought by a violent attack on the Capitol with a cold legal/political question about whether Mr. Trump is indeed guilty of the charge of “incitement of insurrection.”

Democratic House Impeachment Managers hung much of their case on the horror awakened by video images of the deadly incursion — one that could have potentially threatened the lives of many of the Senators judging the former President. The full text of the charges make reference to Mr. Trump’s controversial call to a Georgia official and other attempts to call the election results into question as examples of actions that they argue threatened the “integrity of the democratic system” and “interfered with the peaceful transition of power.” Yet, the Managers’ argument for conviction rested primarily on whether the former President’s statements — especially in his address on January 6 ahead of Congress’ certification of the electoral tally — can be directly blamed for the violence that ensued.

Impeachment in the Rearview Mirror

The central purpose of impeachment is to remove an official from office. Even these articles, served to the Senate after President Joseph Biden’s inauguration, read that Mr. Trump “has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.”

Democrats argued that impeachment was still necessary as a means of holding the former President accountable, disqualifying him from future office, and to serve as a warning to future officials who take similar actions to those they argue perpetuated the Capitol riots.

The point raised debate over whether the Constitution allows for Mr. Trump’s impeachment now that he is a private citizen. Legal experts have opined divergent views and the subject occupied the first slot in the impeachment trial itself.

In his remarks on the Senate floor, Minority Leader Mitch McConnell expressed in harsh terms that he felt the former President was responsible for the violence that occurred, but cited the mootness of late impeachment as the key reason for his “not guilty” vote.

Thomas Schwartz, professor and director of Undergraduate Studies for the Department of History at Vanderbilt University and an expert on the history of the presidency, said that the exceptional nature of the Capitol riot could have been seen as a license to look beyond the standard use of impeachment, but was wary of the potential effects of doing so.

“I tend to feel that given the violation of all sorts of norms connected to elections and the peaceful transfer of power, it could make sense for the Senate to look at these circumstances rather than precedent. But there was a valid objection that this could create a dangerous precedent of trying former officials when the other side is in the majority,” he said.

Mr. Trump is the first former President to face impeachment.

Yet, precedent does exist. In 1876, the Senate tried William Belknap, who served as Secretary of War under Ulysses S. Grant. After accusations of accepting bribes and kickbacks surfaced and Congress began to move toward impeachment, Secretary Belknap speedily resigned, hoping to avoid a trial. Yet, this attempt was unsuccessful. Ultimately, a majority of Senators voted to convict, but the tally fell short of the necessary two thirds.

The English House of Lords’ impeachment trial of Warren Hastings, which spanned several years in the 1780s and ’90s, was conducted after he was no longer serving as Governor of Bengal. While not formally part of the American legal cannon, during Mr. Trump’s first impeachment trial, many scholars noted that the event loomed large in the minds of the Constitutional framers and likely influenced their thinking in constructing the impeachment clause.

Seth Barrett Tillman, an American who teaches law at the Maynooth University Department of Law, in Ireland, and who has published extensively on both impeachment and many of the First Amendment issues pertinent to the Senate’s trial, said that prior House and Senate impeachment precedent might not have been directly applicable to Mr. Trump’s case.

“As an abstract matter, impeaching a former official is apparently the majority view, and it was allowed in the 1876 Senate impeachment trial of William Belknap. But the Belknap precedent for late impeachment involved the officer’s strategically resigning to avoid a House impeachment and Senate trial. With Trump you have the reverse. Trump remained in office until his term ended, and the House purposely delayed delivering the articles to the Senate until President Biden took office and the Democrats became the Senate majority,” he said. “It is far from clear that the Belknap precedent is controlling in these substantially different circumstances,” he added.

Professor Tillman also argued that even if former President Trump had been convicted by the Senate, the goal of disqualifying him from seeking reelection would still be beyond the parameters of the Constitution.

“If you look at the way the terms ‘office’ and ‘officer’ were used in 18th-century English parliamentary law, you will find that that language refers to appointed officers, not elected officials. The U.S. Constitution’s Disqualification Clause used that language in the same way, and it is my view, and has been since 2008, that such language does not extend to elected offices,” he said. “That said, assuming late impeachment is constitutional in these circumstances, if the Senate had voted to convict and disqualify former President Trump, then Trump would be barred from holding appointed federal offices,” he added.

What’s the Rush?

A common refrain from the former President’s advocates during his first impeachment trial was that Democrats in the House had hurried through the process of evidence gathering, relying on the testimony of a handful of diplomats without taking time to issue subpoenas and fight legal battles to build a fuller case to support their claims that Mr. Trump had engaged in abuse of power in his dealings with Ukraine.

The recent charges were drawn up without any significant hearings, testimony, or discovery whatsoever as Democratic Managers argued that Mr. Trump’s public statements regarding the election results and the riot itself were all the evidence needed.

James Trusty, a former chief of the Justice Department’s Organized Crime Section and now a lawyer with the Washington firm of Ifrah Law, said that the approach was flawed.

“Given the real sense of gravity, the word ‘snap’ should never be used together with impeachment,” he said. “There are ongoing investigations about what happened on January 6 and there is a lot we don’t know. How did [Capitol police officer Brian] Sicknick die? What kind of preplanning occurred before Trump ever gave his speech? How much planning was there in general? Not all of this information will necessarily be pertinent to the case, but you would think that getting the facts straight would be more important than the Hollywood-produced videos the Managers were focused on.”

Professor Tilman said he did not see anything inherently objectionable in the Managers’ decision to forgo searching for additional evidence, but that they must be bound by the limits of their decision.

“I think the Managers were within their rights to go ahead with the record they had, but for that to be fair, they had to stick to that record, which was a risk,” he said.

Insurrection?

In American history the term insurrection is commonly associated with the Civil War, and therefore with the idea of an organized military-style attempt to overthrow government authority.

Mr. Trusty said he felt there were enough statements made by the rioters to support labeling the violence an insurrection.

“There is an argument to make that a portion of it … the rioters did want to overthrow the government,” he said. “You can certainly find juicy quotes like the one that they want to hang Mike Pence to support that. There has to be accountability for words.”

Professor Schwartz, however, posited that the term insurrection had been misapplied.

“[Trump] incited violence more than any sort of systematic insurrection,” he said. “When I think of insurrection, I think of the Confederate States, not a crazy mob. As awful and offensive as it was and even if their intention was to prevent Congress from conducting their business, that’s not an overthrow of the government. I think we should make sure a distinction is made between that and violent protests, including the Black Lives Matter protests this past summer, and keep in mind that we have a higher bar for what constitutes an insurrection.”

Democrats and much of the media quickly began labeling the Capitol Riots as an “insurrection,” presumably as a means of emphasizing the gravity of what many saw as the consequences of Mr. Trump’s repeated insistence that the election had been “stolen.”

Professor Schwartz felt that Democrats’ word choice in the legal context of impeachment might have cost the Managers’ case some support.

“I think that [the Managers] could have maybe picked up some more Republican votes had they stuck to a term like ‘violence.’ There was a strong incentive to exaggerate and put the worst spin possible on it, but I have an inclination to want consensus and would have preferred charges that would have won more votes.”

Incitement

The case against the former President rested chiefly on whether a direct line could be drawn between his words and the violence that occurred. Given the robust protection that American jurisprudence affords to freedom of speech, courts have generally set a high bar for what crosses the line of incitement.

The test commonly applied is based on a 1969 Supreme Court case, Brandenburg v. Ohio, which centered on speeches made by a Klu Klux Klan leader, in which he had called for “revengeance” against blacks and Jews. The justices ruled in favor of the Klan leader saying that speech only becomes incitement (and is thereby punishable under the law) if it is “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action.”

Democratic Managers pointed to a long list of combative statements made by Mr. Trump in the wake of the election culminating with his address to protesters on January 6 as having encouraged the violent result.

Mr. Trusty, however, felt that the former President’s statements could not be characterized as incitement.

“You have to look specifically at how words are used and at their common meaning,” he said. “Trump’s words did not call for violence; in fact he called for peace multiple times. … There is an element of people getting whipped up by Trump not conceding, but getting angry is not the same as calling for a violent overthrow of the government. … All Americans are upset by what happened on January 6 and there’s a desire to hold people accountable for that. I’m not downplaying the significance of the rioting or the violence, but to say the President’s words caused it is a bridge too far.”

The Managers themselves set a high standard in their charge which asserted that Mr. Trump “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol.”

“The fundamental questions are: did the President specifically intend to bring about these outcomes, and were these consequences a likely result of his speech,” said Tillman. “If the House Managers would have put forward live witnesses at the Senate trial, that is, people who were with the former President at or about the time of the events of January 6, then the Managers could have some evidence about his thoughts, but if you only have the video, it is difficult to establish his mental intent or motive, and that made conviction difficult for senators following the law.”

As many likely remember from the last impeachment trial, it is far from a settled matter that the President committed a crime prosecutable in a criminal court, something necessary in order for him to be impeached. Last year, while the President’s team argued that the Constitution’s reference to “high crimes and misdemeanors” was limited to acts in the criminal code, many scholars claimed the terms were a reference to broad abuses of public office. The debate proved equally pertinent this time around, given the requirements of what courts typically consider legally punishable speech.

You Started

A seemingly unusual aspect of the case Mr. Trump’s defense team presented were examples of inflammatory or violence-tinged statements made by the very Democrats advocating for impeachment.

The list included a speech by Majority Leader Charles Schumer to a rally outside of the Supreme Court in which he said, “I want to tell you, Gorsuch, I want to tell you, Kavanaugh — you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

Also on the list was Congresswoman Maxine Waters’ call to harass Trump cabinet members: “If you see anybody from that Cabinet in a restaurant, in a department store, at a gas station, you get out and create a crowd and you push back on them and you tell them they’re not welcome anymore, anywhere.”

As with many elements of both sides of the impeachment case, many saw this element aimed more at public opinion than at Senate jurors. Mr. Trusty agreed that it likely has a role in what he called the “circus element of everything going on right now,” but felt that it could have been an appeal to Democratic Senators to act “consistently” in their judgment of Mr. Trump’s words.

Professor Tillman posited that the demonstration could factor into the merits of the case itself.

“[The defense team] tried to show that strong language is part of the American political tradition, and that strong language, standing alone, is not proof of evil or some unlawful intent,” he said. “Generally, it is protected political speech,” he added.

To What End?

Aside from the merits of the case, an oft-asked question since Democrats initiated impeachment was whether the trial of a President who is no longer in office and who was nearly sure to be acquitted served the national interest.

Professor Schwartz felt that holding the former President accountable was important, but feared that the trial, and subsequent acquittal, would ultimately be used by Mr. Trump and his supporters as proof of his innocence.

“Initially, I would have preferred a powerful bipartisan censure, but I guess at this point, this was the only way to go. I think the Managers realized they wouldn’t get a conviction, but they were hoping for a conviction in the court of public opinion and to get more Republicans to move away from him,” he said. “I do think it’s important to air these issues, and make sure there is accountability, but [I am] not sure this was the best forum, maybe a commission of sorts to really delve into it would have been more productive.”

Mr. Trusty also felt that censure would have attracted far more bipartisan support to “express moral condemnation” for the President’s actions, but said the impeachment trial was unlikely to yield positive results for the nation.

“I think a lot of people tuned it out as theater and those who did invest time in it were getting media distillation, which either reinforced an image of Donald Trump as an evil man or of the process as a kangaroo court,” he said. “People didn’t getting a reverence for the process which I think is bad for the county. It causes distrust in our institutions and cheapens the currency of impeachment.”