A day before the impeachment trial of former President Donald Trump gets underway in earnest, the Senate convened to hear debate on the constitutionality of trying a man who no longer holds public office. House impeachment managers – the prosecution – presented their case on Feb. 9 for the legitimacy of this trial, but Trump’s defense team dismantled that position, citing the constitutional flaw and the complete absence of due process for their client. They also presented the chamber with a stark warning about the implications for both future and past presidents and government officials.
Still, the trial will go ahead after an almost party-line vote, with six Republicans agreeing that the proceedings were constitutional.
Should I Stay or Should I Go?
It didn’t take long for lead manager Jamie Raskin (D-MD) to reveal a fundamental flaw in his case. He argued that, if a president can commit an impeachable offense during his final weeks in the White House and avoid a later Senate trial on the grounds that he is no longer in office, it creates a “January exception.” The implication is that a president would enjoy what Raskin described as “constitutional immunity” to commit crimes, knowing that he would avoid conviction in the Senate by virtue of his departure from public office.
Immediately following his “January exception” argument, though, Raskin clearly claimed that Trump’s motivation in stirring his supporters to violence was to remain in office by derailing the certification of the 2020 election result and, thus, the commencement of the transfer of power.
There can be no escaping a Senate impeachment trial if the president is still the president. Trump was either inciting insurrection, knowing that he would escape punishment by leaving office, or he was attempting to remain in office. Both things cannot be true simultaneously.
Wrong Side of History
The House impeachment managers made an admirable attempt to use precedent to argue that impeachment and conviction of a former public official were long-accepted practices.
The historical record is not on the Democrats’ side, however. Tennessee Senator William Blount was impeached in 1797. His Senate trial began in December 1798, and the charges against him were dismissed because Blount had already been expelled from Congress. Mark H. Delahay, a federal judge, was impeached in 1873. He resigned before his Senate trial, which was then canceled.
George English and Samuel Kent, both federal judges, were impeached in 1926 and 2009, respectively. Both resigned before the completion of their trials, and in both cases the proceedings were brought to a close prior to their conclusions.
If a precedent has ever been established, then, it is that the Senate does not pass judgement upon accused government officials who have left office.
The entire question of the constitutionality of putting a now-private citizen on trial is largely moot in the face of the facts. The real question is whether Trump committed the crime of which he is accused, namely, incitement of insurrection. The facts do not favor the accusation. Investigations into the events of Jan. 6 have uncovered a degree of pre-planning, which obviously negates the premise that Trump stirred the crowd to violent action with his speech.
Then there is the inconvenient timeline. Activists were already at the Capitol, tearing down barriers and moving to breach the building itself while the former president was still addressing his supporters some considerable distance away.
Finally, there is the even more inconvenient fact that left-wing activists, such as John Sullivan, who now faces several federal charges in connection with his involvement in the invasion of the Capitol building, are known to have been key instigators during the attack. No senator – or member of the public, for that matter – could possibly believe that these leftists were incited by Trump’s words.
The Perils of This Trial
For the 45th president, attorney Bruce Castor opened the defense’s case for canceling the trial. In a rambling, folksy speech that sounded more like an old man regaling his grandchildren with stories of his misspent youth, Castor waffled on about what great patriots senators are. It became clear that the attorney was attempting to appeal to the better natures of the elected women and men in the chamber, but his remarks did nothing to advance Trump’s case. It was almost a standup routine, minus the humor.
Castor’s colleague, David Schoen, recovered the fumble and headed for the end zone with a long presentation that meticulously dissected the argument that the Senate has the power to try a private citizen. Citing judges, acclaimed legal scholars, and state-level cases, Shoen asserted that, since the mandatory punishment for conviction in the Senate is removal from office, putting on trial an individual who cannot be removed from an office he or she no longer holds is entirely invalid.
Schoen dwelt at length on the lack of due process afforded Trump throughout the impeachment. He described how House Democrats expedited the operation from the start, eliminating the steps that would have allowed the former president his constitutional right to hear the evidence against him and to test that evidence through his defense team.
Equally concerning, the lawyer explained, is the fact that, due to a deliberate delay on the part of House Speaker Nancy Pelosi (D-CA) in transmitting the article of impeachment to the Senate, Trump – now no longer the sitting president – was denied his right to have the chief justice of the Supreme Court preside over his trial. Instead, Sen. Patrick Leahy (D-VT), as the president pro tempore of the Senate, will preside.
Leahy has always been a vocal critic of Trump who has made clear in public statements that he feels the Senate should convict. In addition, Leahy himself gets to vote alongside his fellow senators, making him, literally, both judge and jury.
Shoen pointed out that expanding the instrument of impeachment to include all former public officials regardless of how long ago they served in government could have a chilling effect. Someone serving in government today, the attorney explained, could find himself or herself impeached years in the future by a new Congress that decides some action taken by that official years earlier was somehow impeachable. As an example, Schoen suggested that Jimmy Carter could be impeached for his disastrous handling of the 1979 Iran hostage crisis.
Now that what was largely seen as a formality is over, the trial begins in earnest on Wednesday, Feb. 10. All that really remains to be seen now is whether the six Republican senators who voted to proceed will also vote to convict Trump, who will almost certainly not be convicted and not removed from the office he no longer holds.
Read more from Graham J. Noble.