Trump Response to Impeachment: Read It For Yourself

Burt Likko says:

There’s a lot in here about how Trump claims his rights to due process of law have been violated. But it’s not clear to me that the Due Process Clause applies to impeachment trials at all. Basic notions of fairness are good, of course, but the Articles are based on things that Trump himself did and admits he did, right there in the answer. So what’s the problem?

As I wrote in comment to the House Managers’ brief, there is historical precedent for impeachment after the defendant has resigned or been removed from office (as to Blount, he was expelled from the Senate; as to Belknap, he had resigned), so impeachments can proceed and have proceeded solely on the basis of potentially barring the defendant from future eligibility for office.

For the same reason, the article is not an attainder. Attainders are laws passed to legislatively punish individuals. Since the Impeachment Clause specifically empowers Congress to bar an impeached-and-convicted officeholder from future officeholding, ineligibility was clearly not intended to be a Congressional action prohibited by the Attainder Clause. If it were otherwise, the original text of the Constitution would contradict itself, simultaneously granting and denying Congress the power to do this thing.

Aside: query if convicting an impeached officeholder after a Senate trial is properly considered “legislation” at all.

Trump’s speech at the Ellipse was likely an incitement to immediate violence, as evidenced by the fact that violence erupted very soon after the speech was completed. The only question in my mind about whether he’s responsible for that violence is whether it’s fair to presume that Trump knew or should have known that violence would result, or whether that was a resulting event that few could have reasonably foreseen. And as we’ve discussed quite a lot, yeah, it was pretty damn foreseeable.

Trump’s call to Raffensperger was a separate crime, and is relevant to the article of impeachment because it demonstrates Trump’s intent to subvert the election and hold on to power through any means at his disposal, legal or otherwise. It demonstrates Trump’s willingness to violate the law to achieve his objective of remaining President. If he was willing to extort Raffensperger (a crime), that makes it more likely he was willing to incite a riot (also a crime).

Finally, as to the claim that Trump had a First Amendment right to claim he was the actual winner of the election and to proclaim this fiction as loudly and often as he wanted. He was, at the time, the sitting President of the United States. Presidents are not situated the same as ordinary private citizens. As we heard endlessly the last time Trump was impeached (!), impeachment is a political act, not a strictly legal one. The Senate has to make a political decision about what to do with a man who, while President, literally incited a riot to unlawfully hold on to power in contradiction to the democratically-expressed will of the people.

It can choose to say “Meh. He’s out of office now. So no harm, no foul. And by ‘no harm,’ we mean ‘no harm other than five people dying, two cops suicided after going through it, dozens of other people being injured, who knows how much property damage and security breaches, and the government of the United States was absolutely humiliated on live TV in front of the entire world.’ No harm other than that, and hey, let’s not get on about who killed who. Unity!”

Or it can say that this sort of thing is, in fact, unacceptable in a civilized society governed by the rule of law. Which seems to me to be so glaringly obvious a proposition that on a quiz show, one might wonder if it were a trick question. Unfortunately, 17 Republicans need to decide that this sort of thing is, in fact, unacceptable in a civilized society governed by the rule of law — even when a fellow Republican does it. I frankly don’t think there are so many Republicans as principled as that.Report