Impeachment, it is often observed, is a political and not a judicial process. But precedent still matters, especially when the stakes are so high.
President Trump’s conduct following the November election has given rise to potentially impeachable offenses. But the Article of Impeachment passed by the House of Representatives on January 13 levels only one charge: “Incitement of Insurrection,” based on Trump’s allegedly encouraging the mob that stormed the Capitol building on January 6. The House is setting a regrettable precedent by failing to raise the equally serious—and arguably more straightforward—charges arising from Trump’s effort to pressure government officials to break the law.
There is some strategic merit in highlighting the most grievous consequence of Trump’s actions: armed rioters desecrating the Capitol and seeking to block the peaceful transfer of power. And yet, there are challenges in attempting to draw a straight line between Trump’s words at the January 6 “Save America” rally and the attacks that took place later that day. The president’s defenders point to the fact that he did not explicitly urge violence, but rather encouraged his followers “peacefully and patriotically” to make their voices heard. Indeed, the Article of Impeachment alleges that the Trump’s remarks encouraged lawless action only when read “in context.”
It is highly unlikely that Trump’s words—though reckless—would meet the legal standard for criminal incitement. In the landmark case of Brandenburg v. Ohio, the Supreme Court held that even “advocacy of the use of force or of law violation” constitutes protected speech unless “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Though many scholars argue that an impeachable offense need not be a violation of criminal statutes, the case for impeachment is certainly stronger when the alleged offenses are also violations of established law. At a minimum, an impeachable offense should be sufficiently clearly defined to meet due process—the accused should know precisely what he or she did wrong. The sole charge against Trump relies on an undefined “context” for Trump’s January 6 remarks—likely a reference to some combination of speeches and tweets containing ambiguous phrases such as “fight like hell.”
Anyone following the news in January 2021 will know what the House means by “context,” but House leaders are setting a precedent that will apply to future impeachments against federal officers at all levels. If the incitement charge, standing alone, were to succeed, it would raise the specter of impeachment any time a politician’s words could be construed, in hindsight, as having encouraged unlawful behavior.
There is no need for the House to rely exclusively on the incitement charge when clear evidence exists of actual lawbreaking by the president. For one thing, at the Save America rally, Trump publicly called on Vice President Mike Pence to reject the votes of certain states when the Electoral College votes were to be tabulated later that day—and he boasted that he had pressured Pence privately as well. In front of thousands of protesters, Trump warned Pence that if he failed to overturn the election results, “I’m going to be very disappointed in you.” Trump followed up with a series of tweets the same day urging the vice president to “send back” the supposedly fraudulent electoral votes. Pence in fact had zero discretion to overturn the electoral vote: under the 12th Amendment and the Electoral Count Act, the vice president’s duties are limited to the strictly administrative task of counting the votes. Trump’s effort to induce Pence to violate federal law likely constitutes criminal solicitation. But this aspect of Trump’s conduct is not even mentioned in the House Article.
Then there is Trump’s phone call to Georgia Secretary of State Brad Raffensperger, in which the president warned Raffensperger that he could face criminal liability if he failed to “find” enough votes to overturn Georgia’s presidential election results. That conversation is mentioned in passing in the House Article, but it is not framed as a separate offense. It should be. Trump’s heavy-handed effort to pressure Raffensperger may well constitute a crime under Georgia’s election law, which prohibits any attempt to induce an official to violate the law, as well as the federal law against trying to falsify a state vote count.
Some Republican senators have signaled that they will vote to acquit Trump on the grounds that impeachment proceedings must stop once Trump ceases to be president. This, too, would set a terrible precedent. Impeachment was designed not only to remove bad actors from office but also to deter future malfeasance, as legal scholar Brian C. Kalt demonstrated in an exhaustive 2001 study of late impeachments. If the Senate lacks jurisdiction to try former officials for crimes committed while in office, politicians and judges would be emboldened to flirt with abuses of power toward the end of their terms or to resign from office just before impeachment commences.
Moreover, the weight of authority and precedent suggests that the Senate retains the power to try an ex-president. The Constitution does not explicitly address the question, but it provides a remedy—disqualification from future federal office—that can be applied to ex-office holders. “[W]hat would be the value of the [disqualification] provision,” asked John Quincy Adams, if it could not be used against a former official? At the time he posed that question, 1846, Adams had long left the presidency, but he insisted that he remained “amenable to impeachment” for any actions taken while in office. In the 1876 impeachment trial of ex-Secretary of War William Belknap, the Senate considered the matter at length and ultimately ruled that an official’s resignation does not render impeachment proceedings moot.
None of this is to dismiss pragmatic arguments against impeaching and convicting President Trump. Various congressmen and commentators have raised concerns about worsening the country’s political divide, as well as the prospect of turning Trump into a martyr. Members of Congress—accountable to their constituents—will have to determine the weight of those arguments. But to the extent that Congress chooses to forge ahead, the best way to avoid negative side effects is to present the strongest legal arguments possible in the hope of attracting broad, bipartisan support.
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