This article first appeared in the Epoch Times on February 3, 2021
The House of Representatives has sent to the Senate a single Article of Impeachment (pdf) against former President Donald Trump. Earlier this week the prosecuting representatives from the House (called, by Anglo-American tradition, the “House Managers”) submitted a supporting legal brief. The Trump defense team has responded.
The accusers’ brief is designated a “Trial Memorandum” (pdf) in imitation of the term used in some states for trial court briefs. The defense brief is labelled an “Answer” (pdf).
Here are some take-aways from the documents.
An earlier version of the Article of Impeachment accused Trump of a crime: the final version does not
The first draft claimed Trump was guilty of “willfully inciting violence against the Government of the United States.” The final draft says Trump only “willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol.”
The evidence shows that the Capitol incursion was planned long before Trump gave his speech and that it began before he was finished. He didn’t speak where the violence occurred; he was nearly a mile and half away. And he explicitly told his supporters to walk to the Capitol “peaceably.” These facts explain why the earlier version of the Article was changed to expunge the claim of “willful incitement.”
According to the Supreme Court (pdf), for a speech to be “incitement,” the speaker must actually intend to rouse his audience to “imminent lawless action.” It’s not enough that violence might be foreseeable.
So whatever you may think of Trump’s speech, the evidence shows, and the prosecutors implicitly admit, he did not commit a crime. This creates some problems for the prosecution.
The Trump team raises the First Amendment
The first problem for the prosecution is that if Trump’s speech was not an incitement to violence, then it almost certainly was protected by the First Amendment. The Trump team emphasizes that fact, and properly so.
The accusers’ response
The prosecutors’ Memorandum also claims no crime is necessary for impeachment. It cites non-criminal examples that it believes would justify impeachment (e.g., if the president “publicly championed the adoption of totalitarian government”).
That argument is an effort to address another problem facing the prosecution: We now know that impeachment does require proof of a crime. Among the Constitution’s grounds for impeachment, the first three are “Treason, Bribery and other high Crimes.” These are all crimes.
The fourth ground is “high . . . Misdemeanors”. Newly consulted 18th century law books inform us (pdf) that when the Constitution was adopted, a “high misdemeanor” always was a serious crime. Examples included bribery, assault, and attempted murder.
Unfortunately, the Trump team’s Answer did not challenge the managers’ claim that a non-criminal offense can be impeachable. That was a lost opportunity.
The presidential election—as seen by the prosecution
From many years of political experience, I understand that one reason for the impeachment is to make it socially unacceptable to doubt the results of the 2020 presidential election. Hence, the Article of Impeachment rests its case heavily on Trump’s “false” insistence “without evidence” that he was robbed of victory. Indignation at Trump’s refusal to accept the contested results fairly oozes from the prosecution’s papers.
According to the prosecution, Trump could not possibly believe his “false” claims of election fraud. So he fabricated them to “place his own political ambition above our Nation’s commitment to democracy and the rule of law.”
The presidential election—as seen by the defense
The defense team’s Answer argues that Trump’s assertions of electoral fraud were protected by the First Amendment because “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not . . . .”
True, but rather tepid. The prosecution must rebut the charge that Trump was deliberately making “false” claims just to further his own ambition. It can do so by calling carefully-selected witnesses to testify to election defects. There is no lack of such witnesses.
Regrettably, one of the defense attorneys has announced that evidence of election defects will not be introduced. I think that’s a lost legal opportunity.
I think it’s also a lost political opportunity. Testimony about the election is the last thing the accusers want. Tens of millions of Americans who depend on the mainstream media remain totally clueless about the election’s many problems, which include a blatant violation of the Constitution and federal law. Witnesses on the Senate floor would enlighten those Americans. For the first time, they would learn that, at least as regards the election, the mainstream media and liberal politicians have not been truthful.
If the defense were to offer witnesses to election irregularities, Senator Patrick Leahy (D.-Vt.), as presiding officer, might try to exclude their testimony. But the attempt would send its own negative message.
In sum: No one knows yet whether the electoral defects actually changed the presidential result. But to defend against the charge that Trump was serving his own ambition rather the protecting democracy, his team should show why the former president had reason to think the election was stolen.
The defense team pleads “bill of attainder”
A bill of attainder is a measure passed by a legislature declaring—usually without notice or trial—that a person is guilty of a serious crime. The Constitution forbids both Congress and the state legislatures from passing bills of attainder. The defense argues that “Should the Senate act on the Article of Impeachment . . . it will have passed a Bill of Attainder in violation of Article 1, Sec. 9. Cl. 3 of the United States Constitution.”
This is a stretch. In writing on the issue of whether someone can be impeached after leaving office, I’ve said that one reason for a “no” answer is the Constitution’s strong policy against retroactive and similarly unfair measures. The document’s ban on bills of attainder is an example of that policy. I’ve pointed out that impeachment of an ex-officer is similar to a bill of attainder in some ways. But it is not the same thing.
Does the Article of Impeachment include too many charges?
The defense thinks it does. Its Answer alleges, “The Article is constitutionally flawed in that it charges multiple instances of allegedly impeachable conduct in a single article.”
I’m not sure about that. The Article is not brilliantly drafted, but all its factual assertions seem to point to a single charge: that Trump recklessly promoted (“incited”) violence against the government.
May the Senate act on the impeachment of someone who already has left office?
Both sides spill a lot of ink on this question. And rightly so, because it is very important and quite unsettled. In an earlier column I outlined arguments on both sides.
However, the defense missed another opportunity here: Probably the best argument against impeachment of a former officer is the Constitution’s list of who can be impeached: “The President, Vice President and all civil Officers of the United States.” If I were an adviser to the defense team (which I have no interest in being), I’d point out that former officers are not on this list—and that there is good evidence anyone not on the list cannot be impeached.
The risks of accusing others of what you are doing yourself
Conservatives sometimes observe that when people on the Left accuse them of something bad, it is a sign those people are doing the same thing.
This leftist tactic sometimes works, but it can be risky: Remember how Senator Rand Paul (R.-Ky.), in a brilliant Senate speech, turned Democrat impeachment charges against them.
Yet the prosecutors repeat this mistake by filling their papers with accusations that can rebound against Democrats. For example:
* The prosecution’s Memorandum accuses Trump of dereliction of duty in the hours immediately following the Capitol incursion. But as bad as the Capitol incursion was, by almost any scale of measurement the BLM-Antifa riots last year were worse. Yet many Democrat state and local officials were derelict in quelling the violence—not for just two or three hours, but for weeks and months.
* In 2011, a mob of (leftist) union protesters seized the Wisconsin state capitol. They were never charged with “insurrection.”
* In 2018, opponents of the nomination of Justice Brett Kavanaugh invaded and occupied part of the U.S. Capitol, occupied the Hart Senate building, and tried to break down the doors of the Supreme Court. They weren’t charged with insurrection either.
* If allegations against Trump are sufficient to be “incitement,” then there are plenty of Democratic politicians to charge with the same offense. For example, the prosecutors’ Memorandum repeatedly blames Trump for the bad behavior of a tiny minority of his supporters. By the same standard, one could pin all sorts of bad behavior on leading Democratic politicians. Also by the prosecutors’ standards you could argue that then-Senator Kamala Harris incited further BLM-Antifa riots in June, 2020, and that Senator Elizabeth Warren (D.-Mass.) incited the anti-Kavanaugh building incursions in 2018. We’d also have to ostracize prominent Democrats like Barack Obama’s campaign manager, Jim Messina, because, like Trump, Messina told Obama supporters to “fight like hell.”
Here’s a useful way of getting political perspective on the wrongful Capitol incursions. First, keep in mind the Left’s long history of violence. Next, imagine Trump had been declared the winner of the 2020 election. Suppose that Joe Biden used strong political rhetoric to challenge the election. Subsequently, infuriated Biden supporters stormed the Capitol on January 6.
Would Biden have been charged with “incitement to insurrection? Of course not. Nor should he have been.
The wording of the prosecution’s case invites that sort of political defense. Which is more evidence that this snap impeachment was not well advised.