Executive Summary
Presidential Oath
Summary of Trial Lawyers' Arguments
Minority Leader McConnell's Reaction
The Article in 2nd Impeachment
Reaction to Articles in 1st Impeachment
Was Speech Text "Incitement"?
The Speech in Context
What Was Trump's Impeachable Offense?
Many "Articles of Impeachment" of presidents itemize a specific act or two, e.g., Trump's first impeachment, pressure on Ukraine government; Trump's second, his Jan. 6 speech. This blog post endeavors to build a case for a preeminent Article when a president's actions, whether with intent or effect, constitute an attack on democracy itself, as embodied in the Columns of Democracy, i.e., the essential foundational institutions that support and make possible our democracy, e.g., the peaceful transfer of power after inclusive, free and fair elections, or a respected, free and factual mass media. [here are adjacent examples of both from Trump's Jan. 16 speech: "[O]ur election was so corrupt that in the history of this country we've never seen anything like it. And you know what else? We don't have a free and fair press. Our media is not free, it's not fair. . . . It's become the enemy of the people." Brian Naylor, "Read Trump's Jan. 6, Speech, A Key Part of Impeachment Trial," npr, Feb. 10, 2021, text and video https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial].
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President f the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
U.S. Constitution, Art. II, Sec. 1, Clause 8
Introduction
President Trump's lawyers -- and supporters in and out of the House and Senate -- argue he should not be found to have engaged in "high crimes and misdemeanors" because (a) his January 6 Ellipse speech did not "incite" the violence that followed, (b) it is unconstitutional for the Senate to hold an impeachment trial of a former president whose term has expired (he cannot, by definition, be "removed" from an office he no longer holds), (c) Senate rules require separate charges be in separate Articles, (d) it would violate his First Amendment rights to punish or forbid such a speech, and (e) it would be further divisive of an American population desperately in need of unity.
Following the Senate Trial vote Feb. 13, Minority Leader Mitch McConnell spoke. He first excoriated former President Trump and his behavior, and then explained his "not guilty" vote, citing Constitution Article II, Sec. 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." McConnell argued that to convict Trump he would have to be, at the time of the conviction, "president," which he was not; it would also be impossible for him to "be removed from Office."The House impeachment managers, with Representative Jamie Raskin as lead manager, argue that (a) Trump did incite the crowd to storm the Capitol (4 years of telling his "big lie" -- "landslide" "stolen" election victory -- statements; selection of place, date and time of Congress' certifying electoral votes; his support of prior crowd violence; refusal to order support for Capitol police or tell insurgents to stop; and statements of participants that they were following Trump's orders), (b) a Senate trial of an impeached former president no longer in office is constitutional (language of Constitution, English practice that influenced drafters, their remarks, majority of legal scholars), (c) First Amendment does not protect speech triggering seditious insurrection, (d) for the Senate not to convict would set a precedent for future presidents, and (e) accountability (of Trump) was essential to putting this behind us (thus, presumably, contributing to unity).
Something like that.
As a former U.S. Supreme Court law clerk, law professor, and occasional constitutional law prof, I was overwhelmed with the creativity, quality, effectiveness and delivery of Rep. Jamie Raskin and the other House Managers. (Full disclosure: I had shared some undertakings with his late father, Marc; my first memory of Jaimie was watching his participation as a child in a White House demonstration.) I could not have done it as well as they did. I have no suggestions as to how they could have done it better, and certainly no "criticisms."
Thus, what follows is not about their presentation of the House's Article (by which they were to some extent bound), but some reactions to the theory and wording of that Article.
The Article of Impeachment, "Incitement of Insurrection," [H.Res. 24, 117th Cong., https://www.congress.gov/bill/117th-congress/house-resolution/24/text] consists of five paragraphs.
Following the title ("Incitement of Insurrection") the first paragraph contains the allegation that, "Trump engaged in high Crimes and Misdemeanors by inciting violence."My reaction to this text is similar to my reaction to Article I in Trump's first impeachment [Articles of Impeachment Against Donald John Trump, H.Res.755 — 116th Congress, Dec. 18, 2019], emphasizing his interactions with the Ukrainian government:
The second paragraph mentions the House and Senate Joint Session "to count the votes of the Electoral College" and Trump's "statements that, in context, encouraged -- and foreseeably resulted in -- lawless action at the Capitol."
The two-sentence third paragraph refers to Trump's "prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election," and his "phone call on January 2, 2021, [to] the secretary of state of Georgia."
The fourth paragraph reads in its entirety, "In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States."
The concluding, fifth paragraph asserts that "he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law."
What the House Democrats should have emphasized for a confused public (and Republican Senate), is why Trump's impeachment, and Senate conviction, should be a slam dunk. It is because, unlike other behavior that has, or has not, been found to be impeachable during the 62 impeachment hearings in the House since 1789, what Trump has been doing is something the drafters had experienced, caused them great legitimate concern, and they specifically tried to prevent: namely, foreign interference in our politics, government, and especially elections, whether sought from within or imposed from abroad."Impeachment: What the House Should Have Said; Trump's Conviction Should Have Been A Slam Dunk," FromDC2Iowa, Jan. 21, 2020, https://fromdc2iowa.blogspot.com/2020/01/impeachment-what-house-should-have-said.html.
(See also,"Understanding Impeachment," FromDC2Iowa, Nov. 11, 2019, https://fromdc2iowa.blogspot.com/2019/11/understanding-impeachment.html; and Articles of Impeachment Against Donald John Trump, H.Res.755 — 116th Congress, Dec. 18, 2019, [https://www.congress.gov/bill/116th-congress/house-resolution/755/text], Article I: Abuse of Power/"President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection . . . Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.") Article I is headed, "Incitement of Insurrection." The first paragraph charges "Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States." The second paragraph asserts, "Shortly before the Joint Session commenced, President Trump, addressed a crowd [where he] willfully made statements that . . . encouraged -- and foreseeably resulted in -- lawless action at the Capitol."
Taken out of its context, it is difficult to find within the text of Trump's Jan. 6 11,153-word, hour-plus speech an "incitement of insurrection." [Brian Naylor, "Read Trump's Jan. 6, Speech, A Key Part of Impeachment Trial," npr, Feb. 10, 2021, text and video https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.] He did not suggest the mob hang the Vice President and shoot the Speaker of the House, attack the Capitol police, leave bombs at the DNC and RNC headquarters, break windows and bang on doors, or other of the horrific things that happened. What did he recommend be done with senators and House members who do not support him? "You primary them." What else did he say? "[W]e're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women;" "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."
In context, however, the January 6 speech was but part of a year-long chain of "incitements" for which it was the last; without those early links Trump's speech might never have produced the disaster it did.
There were lines and phrases in the Article that hinted at some of the links in that chain. The House Managers did their best to include them in their story, but such efforts did little to establish that Trump's January 6 speech, standing alone, constituted "incitement of insurrection."
Here are some examples:
The common theme in Trump's behavior was the design of a no-lose strategy; a desire to hang onto the presidency come what may. If he received the most electoral votes he would win. If he did not he had a number of potential paths to retained power. He tried them all. For months prior to the election he repeatedly fed his base the lie that American elections are "fraudulent" and "rigged." Mail-in ballots were not to be trusted. He argued that he would, of course, have the support of the majority of voters, and that, therefore, if he was not proclaimed the winner the results were obviously dishonest. Election night, early returns sometimes went his way. Later, as the mail-in ballot returns came in and the lead shifted, Trump insisted that was proof the election had been stolen from him. When recounts only confirmed his loss, his next step was to file lawsuits challenging the vote. He lost 61 of them. He then turned to speaking directly to electors, county auditors, state secretaries of state, legislators and governors in an effort to get them to change their state's electoral vote count. By late December he was becoming desperate. His last hope was to reverse, stop, or delay the congressional certification of the states' electoral college votes.
- "President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people . . .."
- "he reiterated false claims that 'we won this election, and we won it by a landslide.'”
- "President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.
- Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia . . .."
- "President Trump gravely endangered the . . . institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power . . .."
- "Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution"
That is the context. That was the playing out of his scheme. The Jan. 6 speech, and the insurrection by a mob he had brought to anger over months, was not his initial desire. Stopping the final certification of the Electoral College vote was his last chance. It was only the last domino to fall at the end of a months' long chain.
In other words, the gravamen of Trump's impeachable "high crimes and misdemeanors" was not his speech, it was his attack on our democracy itself; in this case, our system of voting described in another part of Article II (Sec. 1, clauses 1-3), and Amendment XII, that describe the Electoral College system.
In my book, Columns of Democracy, I make the point that a democracy can be neither created, nor sustained, standing alone. It requires a foundation of supporting "columns," such as a respected free and independent media, and, in this case, a system of voting that is respected and trusted by the citizenry as inclusive, easy to use, accurate and honestly administered. Such a system makes for the smooth transfers of power that distinguish democracies from authoritarian dictatorships. Attacking that system, weakening it, threatening the voters trust in it, failing to support peaceful transfer of power -- that should be the impeachable offence.
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