Donald Trump is no longer the President of the United States. That is a tremendous relief. It is also the centerpiece of his defense in his upcoming impeachment trial, his second in thirteen months. Scarcely five weeks after the insurrection on the Capitol, the same Senate chamber that was desecrated by Trump’s followers (with one rioter even declaring at the dais that Trump won the election) will be the court of impeachment, to try Trump for “inciting violence against the Government of the United States.” Last week, Senate Republicans tried unsuccessfully to prevent the trial from going forward, by claiming that it is unconstitutional for the body to try a President who is no longer in office. Forty-five Republicans voted to quash the trial on that basis—including Mitch McConnell, who, as Majority Leader, made clear that a Senate trial could not begin before Trump left office. Their ability to rally around that uncertain constitutional argument—and to avert their eyes from the question of Trump’s guilt—appears likely to keep him from becoming the first impeached President to be convicted in the Senate.
The Constitution’s Article I, which gives the Senate the “Power to try all Impeachments,” says that the remedy for a conviction “shall not extend further than to removal from Office, and disqualification to hold” federal office. A separate provision, in Article II, says, “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.” To some, that language means that the Senate may not try a former official, who, by definition, cannot be removed from office. The constitutional scholars Bruce Ackerman and Gerard Magliocca wrote last month in the Washington Post that “the Constitution envisions impeachment only as a tool for proceeding against a president while he remains in office,” because impeachment’s purpose is removal, not punishment. It is not frivolous for Trump to claim that, since his removal is now impossible, the Senate can’t try him, let alone convict him. That argument is the focus of Trump’s answer to the impeachment article, which was filed by his new lawyers on Tuesday, after he parted ways on Saturday with the lawyers who’d previously agreed to represent him in the trial. (The apparent rush job resulted in the misspelling of “United States” in the title of the document, among other errors.)
There have been several other instances in which the permissibility of the Senate’s trying a former official was hotly debated. The first impeachment in U.S. history was of Senator William Blount, in 1797, for a plot to help the British gain possession of the Spanish territories of Florida and Louisiana, in an attempt to increase the value of his own land. The day after he was impeached, his colleagues voted to expel him, so he was no longer a senator. Months later, the Senate convened as a court of impeachment in order to try him, but Blount’s attorneys argued that the Senate lacked jurisdiction to do so, because a senator was not in the constitutional category of officers who were impeachable and because, in any event, he was not an officer after his expulsion. Ultimately, the Senate dismissed the case, stating that “this court ought not to hold jurisdiction of the said impeachment.” But it did not specify whether that was because Blount had been a senator or because he’d been expelled, so it’s difficult to take the case as precedent for or against trying Trump
The impeachment of William Belknap, the Secretary of War under President Ulysses S. Grant, is more instructive. In 1876, just minutes before the House was set to impeach Belknap for accepting bribes, he resigned his position. The House went ahead and impeached him anyway. The Senate also proceeded to try him, amid debate about whether resigning should allow an official to evade impeachment and conviction. A majority of the Senate voted to convict Belknap, but not the required two-thirds, so he was acquitted. The vast majority of senators who voted to acquit did so not because they thought that he wasn’t guilty of the offense but, rather, because he was no longer an official.
The Belknap case provides clear Senate precedent for trying a former official after he has left office. And his attempt to avoid impeachment by ending his own tenure in the nick of time vividly illustrates the importance of allowing Congress to hold officials accountable for impeachable acts during their last days in office. But Belknap’s acquittal can also be claimed as a guide by Senate Republicans, who will vote to acquit Trump on the view that the Senate cannot try a former official.
A third precedent dates from 1926, when the House impeached George English, an elderly federal judge, for corruption. He resigned days before his impeachment trial, and the House then opted not to push the trial forward in the Senate. This example adds to the ambivalent landscape. On the one hand, Congress’s decision not to pursue a trial was directly in response to English’s resignation, which may lend support to the idea that an impeached official who is no longer in office should not be tried. On the other hand, Congress in that instance did not say that it was constitutionally compelled to drop the impeachment case, but, rather, that it chose to do so.
Most scholars who have studied the issue believe that Trump’s impeachment trial is constitutional; last month, more than a hundred and fifty constitutional scholars signed a statement concluding that “the Constitution’s text and structure, history, and precedent make clear that Congress’s impeachment power permits it to impeach, try, and convict former officers, including former Presidents.” The House impeachment managers’ brief, filed on Tuesday, also leans on common sense, stating that “there is no ‘January Exception’ to impeachment” and that “Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term.” But the argument that the Senate lacks jurisdiction was worrisome enough that more than a third of the brief was devoted to refuting it. The most compelling of the counter-arguments relies on evidence of the Framers’ understanding that in England and in the early American states, impeachment, conviction, and disqualification of former officials for misdeeds in office was widely accepted.
Senators have sometimes referred to themselves as “jurors” in impeachment trials, but it is more accurate to compare their role to that of judges, because they do not only examine the evidence and determine the facts. They also decide for themselves what the Constitution’s impeachment provisions mean. It is unlikely that the question of whether the Senate is permitted to try Trump would be resolved by the Supreme Court, given that courts would likely deem the issue to be a “political question,” left to Congress to answer. That means that each senator has the final word, expressed in his or her vote to convict or acquit. If Republicans wish to acquit Trump, they can foreground the alleged illegality of the process, sidestepping even hugely damning facts as beside the point.
Apart from the argument that the trial itself is unlawful, Trump’s defense will argue that his actions were political speech protected by the First Amendment, and that his impeachment is government retaliation for unpopular speech. The House managers have argued in their brief that the First Amendment does not help Trump, relying on the Supreme Court case of Brandenburg v. Ohio, which held that speech is unprotected if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Trump’s lawyers will want to focus narrowly on his specific words and offer innocent meanings for them. For example, he urged a crowd of followers on January 6th to “fight” for election security in general, not to violently stop Congress from counting electoral votes. And he urged Georgia’s secretary of state to examine ballots for fraud, not to “find” votes using fraud. But the question of whether he did, in fact, incite violence against the U.S. government is properly evaluated by looking not only at his words but also at his determination to remain in power despite losing the election, and at the tragedy that ensued on January 6th as a culmination of that relentless quest. The defense will argue that Trump’s intent in all his actions was not to tell falsehoods, make threats, or encourage unlawful behavior. The fact that the former President’s best available defense—one that will appear to have been successful when he is acquitted—is that he didn’t believe that he’d lost the election and didn’t know that his followers would become violent against the government he was telling them to fight is a manifestation of how, in our time, willful blindness is rewarded.
The most demonstrative rejection of the Senate’s authority to proceed against Trump would be for him to decline to present a defense there at all. But his lawyers appear to understand that Republican senators will glom onto the constitutional argument about jurisdiction in order to countenance their votes to acquit, while Trump and his supporters will be able to claim that he won at trial, finding in his acquittal a confirmation of the election-fraud lies that drove some of them to violence against the government. We’ll get the worst of all worlds: a divisive impeachment trial that inflames half the country and that brings no vindication for the other half. Given the importance of condemning Trump’s destructive actions, the message sent by an acquittal may be worse than no trial. And, further, the result may complicate any effort by criminal-law enforcement to investigate and indict Trump for inciting insurrection or even levying war against the U.S. As we look ahead, then, even those of us who supported impeaching Trump for his catastrophically dangerous conduct in January, in the hopes of removing him, might reasonably feel dread at the consequences of trying him for it in February.
Authored by Jeannie Suk Gersen for The New Yorker