Trump's Impeachment Defense Has One Major Flaw

AP Photo/Manuel Balce Ceneta

On Tuesday, former President Donald Trump’s legal team released a roadmap of his defense in the upcoming impeachment trial. Echoing Sen. Rand Paul (R-Ky.), Trump argues that the article of impeachment is moot because Joe Biden currently occupies the Oval Office. The Senate impeachment trial cannot “remove” Trump from office because he is no longer in office.

While I believe that Trump’s impeachment defense is strong and the former president should get acquitted on the charge of “incitement of insurrection,” I don’t think this particular argument should be the centerpiece of his defense. In fact, I think it is likely constitutional for the Senate to try an impeachment case after a president has left office, especially if the House of Representatives passed an article or articles of impeachment while that president was in office.

In his defense, Trump asks the Senate to “dismiss Article I: Incitement of Insurrection against him as moot, and thus in violation of the Constitution, because the Senate lacks jurisdiction to remove from office a man who does not hold office.”

This argument is stronger than it may at first appear. Perhaps ironically, Trump’s best argument in this regard centers on the question of whether the Senate can disqualify him from holding office in the future.

Trump cites Article 1, Section 3 of the Constitution, which states that “[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…”

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“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,” Trump argues.

Yet the Founders likely envisioned impeachment as a potential remedy for high crimes and misdemeanors even after a president has left office. Shortly after the founding, the British Parliament impeached Warren Hastings, the first governor-general of Bengal, two years after Hastings had left office. This history suggests that the Founders would not have objected to the idea of holding an impeachment trial for a president after his term in office.

On Tuesday, Democrats gave perhaps the best argument against the idea that this particular impeachment trial is moot.

“There is no ‘January exception’ to the Constitution that allows a President to organize a coup or incite an armed insurrection in his final weeks in office,” the Democrats argued. While I disagree with the Democrats’ accusation that Trump “organized a coup” or “incited an armed insurrection,” I think the Democrats are right about one thing: if a president commits high crimes and misdemeanors in the last few weeks or days of his presidency, Congress should still be able to impeach him and convict him.

This idea of a “January exception” powerfully answers Trump’s claim that the Senate trial is unconstitutional. If a president commits high crimes and misdemeanors on his way out the door, and the House votes to impeach him before he leaves office, the Senate arguably should take up the case. Presidents do not get off the hook due solely to timing.

However, the timing issue is not on Democrats’ side, overall. House Speaker Nancy Pelosi (D-Calif.) first delayed the impeachment for days after January 6, then rushed it without any independent investigation, then held up the article of impeachment for weeks before sending it to the Senate. The delays undercut Pelosi’s claim that she had to move quickly to remove Trump as soon as possible.

Trump cited these delays and this rushing as evidence that the House denied him due process.

“The lack of due process included, but was not limited to, [the House’s] failure to conduct any meaningful committee review or other investigation, engage in any full and fair consideration of evidence in support of the Article, as well as the failure to conduct any full and fair discussion by allowing the 45th President’s positions to be heard in the House Chamber.”

“There was no exigency [requiring a fast impeachment], as evidenced by the fact that the House waited until after the end of the President’s term to even send the articles over and there was thus no legal or moral reason for the House to act as it did,” Trump argues.

The president concludes this argument with a powerful statement: “Political hatred has no place in the administration of justice anywhere in America, especially in the Congress of the United States.”

Indeed, the Democrats’ impeachment push does seem based on political hatred. While Trump did make statements coddling the rioters during the Capitol riot, and some have claimed he did not marshall law enforcement quickly enough to respond to the riot, he did not encourage violence against the Capitol and he called for peace during the attack. Democrats might have impeached Trump for coddling the rioters or for not using law enforcement when he should have — though the coddling charge would apply to their words regarding Black Lives Matter and antifa rioting over the summer.

Instead, Democrats accused Trump of “incitement of insurrection.” This would be an extremely difficult, if not impossible, case to prove in a court of law, since the First Amendment rightly covers a broad swath of political speech. Furthermore, if Trump is guilty of this charge, Democrats are also guilty of inciting the antifa insurrections over the summer.

Democrats may have chosen this charge in order to wield the “insurrection” claim against Republicans who supported Trump’s challenges to the 2020 election. Perhaps they intend to expel Republicans from the House and Senate using the 14th Amendment.

This impeachment charge hits far wide of the mark, but when it comes to the constitutionality of the impeachment trial itself, the Democrats are right and Trump is wrong, from what I’ve seen. That means the trial should happen, but the Senate should also acquit Trump.

In fact, some Democrats should vote to acquit Trump because this impeachment effort threatens the freedom of speech. But that’s an argument for another column.

Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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