Tuesday morning, the Senate will start the trial of former President Donald John Trump on the sole article of impeachment, “incitement of insurrection,” passed by the House. If the Senate votes to find him guilty by an unlikely supermajority, Mr. Trump may forfeit many benefits of being a past president, including an office and income, and be prevented from running for president again. Or not. Trump’s current status as past-president, rather than a sitting one, may mean those consequences would not attach to him upon Senate conviction. In any case, congressional Democrats will again make Mr. Trump the center of attention in the country for at least a week, less than a month into President Biden’s nascent presidency.
Insight from Trump
On January 6, insurrectionists breached the U.S. Capitol building, the same day as then-President Trump spoke publicly to the many thousands gathered to hear him in D.C. It was that speech, claim the Democrat House impeachment managers, that sparked the powder keg of irrational frenzy already built up by Trump and his allies:
“[I]ncited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.”
There you have it – Trump incited, then insurrectionists were made. It’s an open and shut case … or is it? The House Democrat impeachment team makes an argument that even never-Trumpers will find difficult to believe; that Trump wanted people to leave his speech, with an hour left to go, and invade the Capitol. Does anyone of any political stripe believe Trump wanted people to leave his speech early?
Brandenburg v Ohio
One of the many inconvenient truths about the events of January 6 is that the violence at the Capitol started at the same time President Trump’s address ended. The inconvenient part is that it’s about a half-hour walk from one place to the other – that’s without closures, barriers, bullhorns, and an army to dodge. Democrats insist this is incitement, but every path to make an incitement charge seems blocked by the plain course of events.
Well, that would be for the crime of incitement. At the heart of their argument is that Donald Trump’s rhetoric not only incited the crowd in the Ellipse on January 6 but that he has presented a pattern of language that incited his supporters in advance of the fateful events. The problem for House Democrats and those Republicans who voted to impeach is that the Supreme Court requires so much more. In Brandenburg v Ohio, the Court held that the government could not punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
It turns out that requirement is no barrier to impeaching or convicting Trump either. This is not a criminal charge – it’s a political one. Gerald Ford famously said a high crime or misdemeanor was “whatever a majority of the House of Representatives considers them to be at the moment in history.”
Anything or Nothing at All
In the unlikely event that Democrats do muster the two-thirds of the Senate required to convict Mr. Trump, there’s another hurdle to sending him adrift on a political ice floe. The proceedings may violate the Constitution.
While many legal pundits have appeared on big-box media to opine that, certainly, a person who used to be president may be impeached, they seem not to have focused on the facts in the present case. That would require an answer to the following question: May a person who is not president be convicted in the Senate after having been impeached in the House while he was president?
Donald Trump is not the president of the United States as he stands trial in the Senate for impeachment charges. He was, however, president when the House impeached him. That may seem unimportant, but when the president is impeached, he gets the chief justice as a judge. The ex-president gets partisan attackers standing in as a judge. Leaving aside that no professional wrestling burlesque would be so bold as to try to sell that farce, it may prove consequential in subsequent proceedings. Those will only be required if Trump loses, which is doubtful.
Democrats will still win kudos from never-Trumpers, however, and continue to fundraise on the back of Trump’s troubles. Such a win may come at the expense of advancing President Biden’s agenda and cabinet nominees, but for Democrats, kicking Trump is a hard habit to break – and is certainly much easier than governing.
Read more from Scott D. Cosenza.