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These Are the Defenses Trump Is Likely to Raise at a Second Impeachment Trial

The U.S. House of Representatives introduced one Article of Impeachment against President Donald Trump on Monday, accusing the president of inciting insurrection at the Capitol on January 6, 2021. As the gears of government begin to turn in an effort to oust the president in his last days, questions as to both the procedure and substance of this eleventh-hour impeachment will be raised by Trump and those who support him.

We have taken a look at the likely defenses Trump will raise in his defense case. First, let’s examine two important procedural objections Trump will certainly raise about the impeachment process.

1. A president cannot be impeached after he leaves office.

This is perhaps Trump’s best procedural argument against impeachment, though that’s saying precious little about its validity. The chances of success for a Trump legal defense of “once I’m out of office, I’m immune from the impeachment process” would seem to fall somewhere between “none” and the laughter emoji.

Here’s the impeachment clause in the Constitution:

“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.”

You’ll note that nothing here suggests that the officeholders must still be in office at the time of impeachment or conviction. Neither the plain language of the impeachment clause, the history of impeachment, nor general legal common sense implies the limitation that Trump is almost certain to argue. The House of Representatives is perched to vote on Trump’s impeachment within days, thus officially commencing the impeachment process.

Generally, experts agree that while a post-term presidential impeachment has never occurred, both historical precedent and standard constitutional analysis strongly support completing an impeachment after a president has left office.

Law&Crime spoke with political investigations and impeachment expert Ross Garber on Tuesday, who said that there could be “a good faith debate” over Trump’s impeachability after leaving office, but that if impeached in the House before January 20, “as a practical matter, the Senate can hold a post-presidency trial if it wants.”

In a Washington Post op-ed headlined, “Congress can impeach Trump now and convict him when he’s gone,” impeachment experts Brian C. Kalt and Frank Bowman agreed, and detailed both the context of the framers’ intent and the history of past impeachments.

Kalt and Bowman called the historical evidence for late impeachability “strong,” particularly because the framers had been heavily influenced by the newly independent states that had just adopted their own constitutions. “Between 1776 and 1787,” they wrote, “10 of the newly independent states adopted constitutions that included impeachment provisions. Five specifically permitted late impeachment; no state explicitly forbade it.”

Plus, how’s this for background: at the time of the American constitutional convention, an impeachment process was proceeding before the British Parliament. Warren Hastings — who had already retired from office of governor general of Bengal — was accused of corruption during his time in Calcutta. The seven-year trial, intermittently held between 1788 and 1795 turned into a major political battle over the British Empire and colonialism. Hastings was eventually acquitted, and according to Kalt and Bowman, “The Framers were acutely aware of the Hastings proceeding, with George Mason raising it as an example during debate on the impeachment clauses.”

Let’s talk a little more American history. It didn’t take long after the Constitution was adopted for the first impeachment trial to take place, and it happens that it involved the impeachment of a former federal official. In 1790, President George Washington appointed William Blount as governor of the new Tennessee Territory. Six years later, Tennessee became a state and Blount became one of its first two senators. Just two years after that, in 1798, a plot was exposed whereby Blount had conspired with Indians and frontiersmen to give Britain control over parts of Florida and Louisiana; Blount was immediately expelled by the Senate. He was then impeached, tried, and acquitted on the grounds that senators are not “officers” subject to impeachment under the Constitution.

During Blount’s trial, he argued that because he was no longer a senator, it was too late to impeach him. That argument failed. Blount stayed out of the U.S. Senate, but returned to Tennessee to serve as a state senator until his death shortly thereafter, in 1800.

Other cases, involving impeachments of federal judges, including the 2009 impeachment of Judge Samuel Kent continued to demonstrate Congress’ power to impeach and convict even after the subject left the bench.

One case from history, that of President Ulysses Grant’s war secretary William Belknap, is perhaps most applicable to the timeline of Trump’s second impeachment. Articles of Impeachment were drafted against Belknap for corruption while he was still in office; minutes before the House of Representatives was scheduled to vote on the articles, Belknap tearfully resigned.

The House still voted to send the Articles of Impeachment to the Senate, which then held a full trial. Though a majority of the Senate then voted to convict Belknap, it wasn’t enough to reach the two-thirds necessary; Belknap was acquitted.

Though the history and context weigh heavily in favor of the legality a post-office impeachment trial against Trump for his wrongdoing while in office, expect more talk on the subject in coming days.

Of course, that’s not to ignore the more practical question of whether there is real value in doing so.

Certainly, reasonable minds could disagree as to whether an impeachment trial is an ordeal necessary to inflict on the American people when Trump has already exited the White House. While some have suggested that that a late impeachment would provide little meaningful benefit, others have called the move necessary to deter future wrongdoing by presidents.

“Divisive” though the process may be, it’s worth it, the argument goes.

The American legal system allows both criminal and civil trials to proceed in absentia, and sometimes, even posthumously. Impeachment trials, which are political and not legal proceedings, pose even milder questions of due process. Without any serious legal basis for the contention that Trump’s post-January 20th impeachment trial may not proceed, it will proceed.

2. The entire effort is a “snap impeachment,” undertaken too quickly.

This objection may sound compelling, but ultimately isn’t.

George Washington University law professor Jonathan Turley is certainly correct that the second Trump impeachment is moving quickly; that speed, however, in no way disqualifies the proceeding from being as legitimate as a longer or slower one. Like criminal prosecutions or civil lawsuits, some impeachments are simpler than others.

Professor and impeachment expert Frank Bowman explained in a conversation with Law&Crime on Tuesday that Congress’ power to impeach was “meant to be a defense against an overreaching and potentially tyrannical executive.”

“Ordinarily,” Bowman continued, “you’d like [the process] to be deliberative, but if you have a president that is a danger to the republic, you have to move fast.”

Bowman pointed to the example of the 1868 impeachment of President Andrew Johnson, which occurred just three days after Johnson fired his Secretary of War.

Ross Garber also explained in an email to Law&Crime that “Impeachment proceedings should not drag on.”

“The process is to serve as a prophylactic to prevent ongoing damage to the nation,” Garber said, adding that the proceeding “should not be done to satisfy momentary passions or in a way that disregards fact-finding or precludes the target from mounting a defense.”

He said that “if there is enough publicly available evidence and some bi-partisan support, and the President has not sought to present evidence,” there is no reason to consider Congress’ quick impeachment improper.

Trump is also likely to raise (and in one case, has already raised) some substantive defenses. Rather than attacking the legitimacy of the proceedings, Trump’s legal team will surely defend on the grounds that the president’s behavior does not conform to the wrongdoing alleged in the Article of Impeachment.

3. Many people are saying … the Trump speech to supporters was “totally appropriate.”

Trump told reporters on Tuesday that his statements prior to the Capitol riots were “totally appropriate.” Such a conclusion, however, is for the finder of fact (in this case, the Senate sitting as tribunal) to make. Certainly, it is Trump’s right to argue his version of the facts, however unconvincing that argument may prove. The president’s characterization of his pre-riot speech as “totally appropriate” is reminiscent of his tales of a “perfect phone call” with Ukrainian President Volodymyr Zelensky.

A sharper contrast is evident between the Zelensky-call impeachment and the current one regarding the Capitol riots. The wrongdoing alleged against Trump with regard to the Zelensky call required knowledge of context, testimony from experts, and at least a few inferences. The question of an implicit quid pro quo—and the ultimate release of Ukrainian aid—shaded Trump’s statements on the call, carving out room for Trump supporters to create a narrative whereby the president had been blameless.

While Trump’s public statements leading up to the Capitol riots were attached to the same underlying thread (to keep Trump in office at all costs), the charges of inciting insurrection are far simpler. The Senators will hear evidence and decide for themselves what they believe and what they think it means. While the exact vote breakdown could not be certain before proceedings even begin, it’s fair to say that some Senators (including some Republicans) already believe Trump’s actions to have been anything but appropriate.

During the fact-finding process, proponents of conviction may choose to introduce Trump’s own philosophies against him.

Daniel Goldman, lead counsel for the House Democrats at Trump’s first impeachment, tweeted that, “Impeachment should proceed apace and every [member of Congress] must think hard about whether s/he supports Trump’s efforts to overturn the election and incite an insurrection on the Capitol.”

4. Anything Trump said was protected by the First Amendment, and therefore, cannot legally form the basis of an impeachment.

Alan Dershowitz has already argued that a president cannot be impeached for protected speech. He said that he would defend Trump once again at a second impeachment if asked to do so.

Speech that incites danger is not protected by the First Amendment, regardless of whether the speaker is an ordinary citizen or the American president. Furthermore, an impeachment is not a criminal proceeding, but a political process. Contrary to his rhetoric, Trump has no legal right to be president; therefore, ousting him from office does not constitute an unconstitutional attack on free speech.

“Yes, any person has a right to engage in political speech, including controversial or obnoxious rhetoric. But there absolutely is a line between political speech and criminal incitement,” CNN legal analyst Elie Honig advised Law&Crime in an email. “As a prosecutor I’d gladly show a jury Trump’s own inflammatory statements and argue they cross the line to criminality. (And, of course, it isn’t even necessary in the first place to prove a crime in order to impeach).”

Harvard Law professor emeritus Laurence Tribe offered a similar opinion on Twitter.

Ross Garber predicted that there will be a “vigorous argument about whether the president was engaged in protected political speech or crossed the line into inciting a riot or an insurrection.” Again, the ultimate decision as to whether Trump actually incited insurrection will lie with the trier of fact.

In a call with Law&Crime, Frank Bowman argued that any defense based on the First Amendment is missing some critical context.

“The article of impeachment is not directed simply at speech,” Bowman said, “but at an entire course of conduct.” Of course, the impeachment trial will focus on the events of January 6, 2021, as Bowman put it, but “to some extent, [the Article of Impeachment] explicitly addresses an entire period of time from the election to the 6th.”

Bowman remarked that he’d advised an exclusion of the term “incitement” knowing that its use would spark First Amendment debates. Trump’s primary wrongdoing, according to Bowman, was that he “essentially organized/encouraged a broad effort to try to overturn the election culminating in violence.” The riot may have been the apex of that effort, said Bowman, but the true wrongdoing was “the concerted effort to reverse the effects of a lawful election and retain Trump in office as quite literally an unelected autocrat.”

Bowman underscored that the involvement of speech does not render otherwise illegal actions legal under the First Amendment. A suggestion that Trump’s call for a violent insurrection is legal simply because it is speech is, per Bowman, “like saying that the First Amendment covers communications of a mob boss as he tells his minions to go out and do crime. Just because it involves speech doesn’t meant the First Amendment covers it.”

5. It is improper to impeach a president based on the actions of his or her supporters.

Jonathan Turley and others have argued for a reading of the impeachment article that would render Trump the scapegoat for his supporters’ misguided actions in staging an attempted coup at the Capitol.

Proponents of such logic are correct about one thing: although impeachments are not legal proceedings, holding an impeached official accountable for the independent actions of third parties is generally antithetical to American notions of fairness. In the case of Trump and the insurrection at the Capitol, however, the process will seek conviction for Trump’s own part in the riot. The wrongdoing alleged is that Trump was complicit in and to blame for the riots precisely because he told supporters to march to the Capitol—having whipped them into a frenzy with lies of a stolen election and urging them to “fight like hell” or else lose America.

There is a strong foundation in American law for the criminal prosecution of those who suggest, urge, conspire, and attempt to commit crimes. Even when completed crimes do not occur, we punish those who would try or agree to commit crimes. Impeachment, a political process, carries no risk of incarceration or other loss of liberty; therefore, it does not require proof of wrongdoing beyond a reasonable doubt. Still, the underlying concept—that urging others to commit crimes is a crime in itself—is one clearly transferrable to the impeachment process.

One functional difference between impeachment and criminal trials, noted Bowman, is that impeachment requires a lower standard of proof.

“Remember, this isn’t a criminal case,” he  said. “[Impeachment lawyers] don’t have to prove that Trump had specific intent.” Rather, as president, Bowman said, “He has a responsibility to support and uphold the Constitution. If he takes actions that are foreseeably likely to produce violent outbursts on the part of a mass of his supporters, that’s enough.”

Bowman argued that in the context of presidential wrongdoing, it is even more appropriate to consider the actions of those incited than it would be with respect to an ordinary individual.

“The power of any president individually is nil,” explained Bowman. “The only way the power of a president is expressed is through the actions of other people: appointees, subordinates, supporters. If the president acts in a way that causes those supporters to do bad things, then certainly, he is responsible.”

[image via Mandel Ngan /AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos