Trump’s Defense
Donald Trump’s defense to his impeachment trial is two fold: 1) you cannot try me for my actions as President because I’m a private citizen now; 2) I was acting within my First Amendment rights in asking my supporters to fight for me, since I believed then and still believe that I won the presidential election. https://www.nytimes.com/interactive/2021/02/02/us/politics/trump-brief-defense-impeachment.html
The Constitution’s founders had extensive debates about impeachment; they were deeply concerned about Presidential abuses of power in order to stay in power. https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/ So when Trump ordered his mob to the Capitol to disrupt the counting of the Electoral College votes, that is exactly and precisely what the founders had feared, and why they adopted the long-standing English model of impeachment as a check on the President.
Forty-five out of 50 Senate Republicans sided with Trump before the trial has even begun, maintaining that it is unconstitutional to try Trump once his term in office ended and he became a private citizen. The Congressional Research Service recently reviewed the issue, the Constitutional history and the Congressional precedents and found that in the past both the House and the Senate had concluded that a public official who had left office could be impeached and convicted. https://crsreports.congress.gov/product/pdf/LSB/LSB10565
The English practice of impeachment on which our Constitutional provision is modeled covered both current and former high government officials. In fact as our founders were debating and adopting the impeachment clauses of the US Constitution, Lord Hastings, the ex-Governor General of India was being impeached for his conduct in office although he no longer held high office – a proceeding favorable referenced by the Constitution’s drafters during their discussion and debates about the impeachment provision. https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf
Conservative legal scholar and retired Court of Appeals Judge Michael McConnell points to the operative word “all” in Article 1, Section 3, Clause 6 of the Constitution as the clincher for trying ex-President, now citizen Trump. “Article I, Section 3, Clause 6, states: ‘The Senate shall have the sole Power to try all Impeachments." The key word is "all." This clause contains no reservation or limitation. It does not say "the Senate has power to try impeachments against sitting officers." Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.”
Judge McConnell writes “Article I, Section 3, Clause 7, states: ‘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.’ Read together with Article II, Section 4, this means that the consequence of conviction on impeachment must include removal from office, may include disqualification from future office, and may not include any other sanction. The first sanction is limited to sitting officers, which makes sense. The second sanction is not so limited.” https://reason.com/volokh/2021/01/28/impeaching-officials-while-theyre-in-office-but-trying-them-after-they-leave/ In other words, ex-federal office holders can be tried and convicted and be barred from future holding of federal office for their misconduct in office.
The founders were quite explicit that impeachment was designed to reach Trump’s conduct in trying to overthrow the voters’ rejection of his re-election. The House Impeachment Managers write, “Second, and highly relevant here, many Framers described efforts to overturn or corrupt elections as the paradigm case for impeachment. Gouverneur Morris explained that 'the Executive ought to be impeachable for ... Corrupting his electors.' William Davie favored impeachment for a President who spared 'no efforts or means whatever to get himself re-elected.' And Mason intended impeachment for a President ‘who has practiced corruption & by that means procured his appointment in the first instance.'” https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf
Congressional precedent is that ex-federal office holders can be tried and convicted. The first use of impeachment was in 1797, shortly after the Constitution had been adopted; it involved the case of Senator William Blount who plotted with the British to take the lands of Florida and Louisiana. He was impeached by the House and expelled but not convicted in the Senate. https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf Not too long after the Civil War, Secretary of War William Belknap was impeached by the House for corruption (bribery with respect to Indian Affairs) even after his speedy resignation from office in an effort to avoid impeachment. The Senate voted over his objections that it had jurisdiction even though he was no longer an office holder; he was tried but not convicted in the Senate. Two federal court judges accused of conduct that warranted their removal from lifetime tenure on the federal bench were impeached by the House, and tried but not convicted in the Senate after leaving office. https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf
Trump’s First Amendment free speech defense to impeachment is a complete red herring. Of course he has a right to his opinions and to voice them. But his duties as a President are to support the Constitution, not to overthrow it. He can voice his personal opinion that he won the election in a landslide. But as President of the United States, he cannot call up the Georgia Secretary of State and ask him to find enough votes to overturn his election loss in that state. He can of course question the election results and ask as he did for the recounts and judicial review that confirmed his loss. But as President he cannot organize, encourage, incent and pay for a crowd to come and take over the Capitol to prevent Congress from counting the Electoral College votes cementing Biden’s victory. As the nation’s President, his duty is to defend the Constitution, not to overthrow it. As President, his duty is to defend the Capitol, and to call in the troops if needed to defend it even from his own supporters, not spend the time calling Senators to delay and obstruct the Electoral College vote count confirming his defeat.
During the deliberations about impeachment among the Constitution’s drafters, “Gouverneur Morris explained that ‘the Executive ought to be impeachable for ... Corrupting his electors.'” William Davie favored impeachment for a President who spared 'no efforts or means whatever to get himself re-elected.' And [George] Mason intended impeachment for a President ‘who has practiced corruption & by that means procured his appointment in the first instance.'” https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf As Senator Wallace said during the impeachment of Secretary of War Belknap “The Constitution demands of all its officials purity, honesty, and fidelity, and it is plain enough and strong enough to enforce its demands at all times and upon every class of those who enjoy its high places.” https://judiciary.house.gov/uploadedfiles/house_trial_brief_final.pdf
The ancient Greeks practiced ostracism (banishment for a decade) for dangerous demagogues in high office inciting mob rule threatening the democracy. The English hung them, cut off their heads or imprisoned them in the Tower of London. Ben Franklin argued that impeachment was far more humane than assassination as a way to remove corrupt or demagogic officials clinging to their powers at all costs. https://www.smithsonianmag.com/smart-news/american-presidents-can-be-impeached-because-benjamin-franklin-thought-it-was-better-assassination-180961500/
Alexander Hamilton identified the exemplar for impeachment as follows: "When a man unprincipled in private life[,] desperate in his fortune, bold in his temper . . . despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the non sense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may 'ride the storm and direct the whirlwind.’” https://www.npr.org/2019/11/18/779938819/fractured-into-factions-what-the-founders-feared-about-impeachment
Our nation has never before in over 230 years seen the Capitol invaded and Congressional lawmaker’s lives threatened from within, by the supporters of a President seeking to overthrow his rejection by the nation’s voters. Unless Trump is convicted, it won’t be the last. A few Republicans in the House and the Senate are standing up to Trump and to Marjorie Taylor Greene and their ilk. Too many are enabling and encouraging the white supremacists, neo-Nazis, domestic terrorists for their own political gains; most others are cowering concerned for their own political futures hoping it will all blow over.
During the 1960’s, many of our nation’s great leaders were assassinated by political zealots and racists. Is that the nation we wish to become? Trump’s first campaign was rife with calls for jailing his political opponents. His second was punctuated with calls for violence against all those opposed to him. In the interim between campaigns, he continued to call for violence against his opponents, and his supporters took him up on this, including an armed takeover of Michigan’s Capitol building and a plot to kidnap the state’s Governor. Since Trump’s defeat, the violence of his rhetoric has escalated and struck a chord with his disappointed followers, culminating in their attack on the Capitol.
This is an existential threat to the Republican Party itself. Will it become the ultra right wing extremist party of Taylor-Greene, Brooks, Gosar, Biggs, Hawley and Cruz? Or will it become the traditional, conservative establishment party of Romney and Sasse, of Cheney and Kinzinger, of Baker and Hogan? One wing wants blood and evokes the specter of armed conflict; the other wants a return to normalcy after the era of Trump. Minority leaders McConnell and McCarthy have the unenviable task of shepherding members from both wings. In my view, they are far better served by a quick bipartisan conviction of Trump, which will remove him from future aspirations of high office and lance the boil of his demagogic and mesmerizing hold on major segments of the party faithful. In the short term, it will fracture the party, however, and likely it will limit their aspirations for a return to power in the 2022 election. It will set the stage for rebuilding a party based on conservative principles as opposed to transparently self-serving and ultimately self-defeating lies. They thought that humoring Trump after his defeat would be quite harmless; that was clearly a major miscalculation on their parts. His adherents are still in his thrall and waiting out the impeachment trial to proclaim his innocence and plot his resurrection. The right wing extremists are now ascendant and gaining strength within the party, while revulsing and repelling the rest of the nation; they must be stopped and the GOP leadership should rise to that challenge. Their other alternative is to embrace Trump and Marjorie Taylor-Greene and the other conspiracy-obsessed, right wing extremists within their own ranks. Down this road lies madness and the destruction of their party. It shouldn’t be a tough choice for GOP Senators. Convict Trump!
Lucien Wulsin
2/5/21