CHICAGO – Former President Donald Trump’s trial in the United States Senate has begun, but already a great deal of confusion has arisen about fundamental questions. Trump’s lawyers argue that the Senate is not permitted to hold a trial at all. The Constitution says that, “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Trump, according to his lawyers, cannot be removed from an office that he no longer occupies.
But the Constitution also states that, “Judgment in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” The House impeachment managers (who act as prosecutors in the Senate trial) note that disqualification can apply only to a former officeholder.
The reason is that removal is automatic upon conviction by the Senate, while disqualification would require a further vote on the fate of the now-former officeholder. A person who is impeached and removed no longer holds office, and yet the Senate would be entitled to vote that he be disqualified.
Because the House voted to impeach Trump while he was president, there can be no credible doubt about the legitimacy of a Senate trial. Imagine a law that says that a police officer found to have abused her authority may be fired and prohibited from being rehired. It would be odd if she could evade the sanction of disqualificationsimply by resigning – and thus no longer being a police officer – after termination proceedings were launched but before they were completed. The only difference with Trump is that his term expired.
So much for the language of the Constitution. As is nearly always the case, founding-era debates and historical practice provide little additional guidance. While genuflection to the founding text is de rigueur nowadays, the real question is whether a Senate trial leading to disqualification of a former president who had been impeached by the House while still in office would do harm to the US constitutional system.
It is hard to see how it could. Whether the subject of the trial is a president or former president, conviction requires two-thirds of the senators present (after a majority in the House approve articles of impeachment). That threshold is so high that it would be reached only in a case of egregious presidential misconduct.
Is “incitement to insurrection” egregious enough? Unfortunately, under current political conditions, it probably isn’t. Impeachment is best understood as a political sanction that will be imposed only when there is sufficient political support for removing a president or, as in this case, disqualifying a former president from holding office in the future. And, despite the January 6 attack on the US Capitol, Americans remain divided about Trump.
Republican senators must weigh the risk of losing votes to challengers in party primaries if they vote to convict Trump against the risk of losing the support of moderates in the general election if they vote to acquit him. Because most conservative states will send Republicans to the Senate, most Republican senators will be warier of primary challenges and vote against conviction.
In fact, those senators would rather not vote at all – and not be tarnished in the general election – which is why all but six Republicans preferred to vote that the Senate lacks jurisdiction to try Trump. But Democrats may have done them a favor by overreaching in another respect: by alleging in the single article of impeachment that Trump incited an insurrection.
In both ordinary language and legal terms, an insurrection is an uprising against the government. The House managers argue that Trump incited a mob to overthrow the government. In a technical sense, we might call the mob action an insurrection, even though at the time Trump was the head of the government that he supposedly sought to overthrow.
At least some members of the mob hoped to kill, abduct, or intimidate members of Congress and (somehow) prevent Congress from certifying the election. The argument is that Trump not only sparked the mob’s march on the Capitol, but also anticipated such a result and deliberately brought it about. Then, once the violence began, he did too little to stop it.
Maybe. But the better reading of events is that Trump was being Trump. By the standards of previous American presidents and virtually all American politicians, he was extraordinarily reckless in insisting for two months that the election was stolen and then in using inflammatory language with the crowd that had gathered to protest the election results.
But he did not directly ask the crowd to engage in violence, and there is no evidence that he anticipated that they would. Trump, like everyone else, must have expected that the police would keep the crowd under control, and would not have expected them to invade the Capitol (something that has not happened since the War of 1812, when British troops occupied Washington).
Moreover, if Trump had been a private citizen, his speech at the rally would have been protected by the First Amendment. Even if he had called for revolution, he would have done nothing illegal, as long as he did not direct a mob to engage in “imminent” violence.
Trump’s lawyers argue that the First Amendment protects the president in his official capacity as well. But no one has ever considered the possibility that a president would stir up American citizens to attack Congress. A president with immense influence and reach poses a far greater danger to public order if he tells lies and stirs up anger than an ordinary rabble-rouser who stands on a stump and preaches revolution.
But the claim that Trump incited an insurrection is a stretch, and Republican senators seeking to justify acquitting him will argue that whatever he did, it was not insurrection. The real reason to disqualify Trump is that he is a menace to American institutions whose reckless, power-mad antics almost undermined an election and will sow mischief for years to come. This should be plainly said. Then it’s up to the House managers to persuade Senate Republicans – and, more important, the citizens who may vote for them – that this man should not be allowed to run for office ever again.
Eric Posner, a professor at the University of Chicago Law School, is the author, most recently, of The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump (All Points Books, 2020).
Copyright: Project Syndicate, 2021.
By Eric Posner