The U.S. Capitol building is reflected on the hood of a car on 10 February 2021 in Washington, DC. House managers and the defense will make opening arguments today as the Senate impeachment trial of former President Donald J. Trump continues. (Photo by Sarah Silbiger/Getty Images)
Artillery Row

Impeachment Follies: The case against conviction

Paul du Quenoy argues that Democrats are unlikely to achieve their dream of removing their most dangerous rival from contention in 2024

“Great world-historic facts,” Marx wrote citing Hegel, “appear, so to speak, twice … the first time as tragedy, the second time as farce.” Marx was thinking of notable figures of the French Revolution and their analogues in France’s tumultuous mid-nineteenth century, but Donald Trump has proved the aphorism while suffering the indignity of being the first U.S. president ever to be impeached twice.

The first time turned out to be quite tragic. On the basis of flimsy circumstantial evidence that has since been called into question, the majority-Democrat House of Representatives approved two articles of impeachment, for alleged “abuse of power” and “obstruction of Congress.” In a strict party-line vote everyone expected, the then majority-Republican U.S. Senate predictably acquitted the president, with only Senator Mitt Romney, a long-time Trump foe, voting in favour of removing Trump solely on the “abuse of power” article.

This result was no small tragedy for the Democrats, who had wasted an enormous amount of time, energy, expense, and credibility only to fail, and then saw Trump’s public approval ratings rise, just as Bill Clinton’s did after he was impeached, but not removed from office, in 1998. Doubly tragic was that the impeachment hearings and “management” (i.e., prosecution) of the Senate trial were handled by members of the House intelligence committee in December 2019 and January 2020, just as the malignant coronavirus was emerging from wherever it started in China. One might think they had better things to do in those crucial weeks before we entered our depressing new normal.

If the first impeachment was a tragic and dishonest diversion of national attention from a malady that has paralysed it almost ever since, the second one is the Hegelian farce. This impeachment’s only article, “incitement to insurrection,” blames Trump for the storming of the Capitol building on 6 January. The precise allegation is that he called upon his supporters to “fight” for a political cause they believed in and “march” on the Capitol. Under the law, this is not even close to a crime.

The incitement article against Trump is farcical and has demonstrably no basis in law

Incitement, as defined by the U.S. Supreme Court in a 1969 ruling and by subsequent laws, requires a specific call for violent actions against a specific individual or individuals, and a reasonable expectation that those who hear the call are both able and willing to follow through. Normally, it is used to prosecute terrorists. Trump never called for the Capitol to be stormed, for law enforcement officers to be assaulted, for U.S. federal government property to be damaged or violently trespassed, or for any specific harm to befall any individual or group of individuals. Even had he done so, in addressing a large crowd at a distance and behind the remove of daunting presidential security measures, there is simply no way he could have reasonably known that his supporters were either able or willing to storm the Capitol and cause bodily harm therein. Some evidence supports the legally exculpatory conclusion that the Capitol storming was premeditated by radical groups and occurred without Trump’s encouragement.

But if Trump is guilty of incitement, so is every other American politician who ever called on supporters to “march” and “fight” for a cause. How many did so in favour of Black Lives Matter protests, which resulted in considerably greater loss of life, injury, and damage to government and private property? How many did so during Trump’s 2017 inauguration, when over 300 people were arrested while much of downtown Washington, DC was smashed? Madonna called for the White House to be blown up in those days, yet she roams free. The incitement article against Trump is farcical and has demonstrably no basis in law.

The Constitution has no provision for an impeachment-generated Senate trial of any public official who has left office

Also farcical are the expectations of those who have organised the impeachment and trial, that sombre column of self-important Democratic Representatives who strode two abreast to the Senate to deliver the paperwork. While they approved the impeachment article by the required simple majority, securing real consequences – a Senate conviction – demands a two-thirds vote in the upper house. The Senate is presently divided 50-50, meaning that at least seventeen Republicans would have to break ranks to convict their own as yet unchallenged leader. That is plainly not going to happen. Only ten House Republicans out of 211 voting members – fewer than five percent – voted for impeachment, and all of them have suffered tremendous backlash, including censures from their state party organisations and grim assurances that they will be eliminated in primary challenges before they even have a chance to run for office again in the 2022 midterm elections. Unsurprisingly, a Senate motion to table the impeachment trial won the support of 45 Republican senators, leaving a wholly inadequate five (Romney and four others) who may be inclined to vote to convict Trump.

This legislative mathematics, of course, comes before the awkward fact that Trump left office some three weeks ago and can therefore no longer be removed from it. The U.S. Constitution has no provision for an impeachment-generated Senate trial of any public official, including the president, who has left office, or any means to punish such an individual if a trial were held. In the only similar case, William W. Belknap, a Secretary of War who resigned in 1876 due to a garden variety corruption scandal, was then impeached by the House and then tried by the Senate. Despite his admission of guilt, a then-decisive balance of 25 senators nevertheless voted to acquit him, with all but two citing the Constitution to argue that the Senate had no jurisdiction over the matter because Belknap was by then a private citizen.

Supreme Court Chief Justice John Roberts, reportedly the driving force behind the High Court’s decision not to hear a decisive election challenge on debatable jurisdictional grounds, acknowledged the extraconstitutional nature of the proceedings against Trump when he recused himself from presiding over the trial, which began on 9 February. Constitutionally, the trial of a sitting president must be presided over by the Chief Justice, as happened in all three previous presidential impeachment trials. Roberts, however, has logically argued that since Trump is no longer a sitting president, he was not bound to preside. In his absence, Senator Pat Leahy is presiding over the trial in his capacity as the Senate’s president pro tempore, a position held by the senior serving member of the majority party in the absence of the Vice President, who is constitutionally president of the Senate but does not preside over its day-to-day operations.

Some Democrats have advanced the argument that a trial verdict to convict could allow them to exclude Trump from holding office in the future, effectively blocking his possible presidential candidacy in 2024. But here, too, the logic is farcical. Exclusion from federal office is a constitutionally valid option and can be approved by a simple majority of senators, but only after the Senate votes to convict by the required two-thirds majority. Without the two-thirds majority conviction, which is known to be unattainable, there is simply no possibility of passing even this lesser measure.

As the matter evolves, still others, supported by dissident Republican Senator Susan Collins, have walked back the goal of Senate conviction in favour of a censure of the former president. This formal statement of disapproval carries neither constitutional authority nor any official consequences, however, and can later be overturned. This is, in fact, what happened in the only previous censure of a president. In 1834 Andrew Jackson was censured for taking extraordinary measures against an abortive U.S. national bank. He remained president and succeeded in eliminating the national bank. Three years later a differently composed Senate expunged the censure, which is now but a scarcely known footnote in the history of his presidency.

Even this weak measure might not be viable in the present circumstances. A censure can be approved by a simple majority, or all 50 Senate Democrats plus Collins, but the vote itself could be obstructed by a Senate filibuster, which can only be overcome by a three-fifths supermajority, or 60 senators. It might have been possible to convince ten Republicans to go along in the two weeks between the Capitol storming and Trump’s departure from office, but Trump is gone, the camps have retrenched, and the greater political significance is known to all. Additionally, a Senate censure vote would also have to be passed in the House, which already voted to reject one in favour of impeachment and might not now be able to consider a new censure measure.

Democrats hope that legislative action could help remove their most dangerous rival from contention in 2024

A more arcane argument favouring extraconstitutional trial points to English constitutional history. Warren Hastings, formerly governor of Bengal, was impeached by the House of Commons (in proceedings presided over by Edmund Burke) for numerous alleged crimes in office. He was then tried by the House of Lords, which acquitted him after seven years of proceedings. His impeachment and trial were current news while the U.S. Constitution was being drafted, and mention of it appeared in the deliberations. But although the Founding Fathers were aware of the Hastings case and its possible relevance to the very impeachment provisions they were then drafting, they did not incorporate its legal principles into the founding document of U.S. government. Nor, despite 21 impeachments of U.S. federal office holders (including three presidents) since the Constitution’s ratification in 1787, and the sensational near-impeachment of Richard Nixon nearly two centuries later, were they ever subsequently included in the Constitution, which has been amended for other reasons 27 times.

Then why proceed? Another more colourful example from English legal history – the ultimate fate of Oliver Cromwell – may suffice to explain the Democrats’ ardour beyond their usual privileging of emotion over reason. Cromwell, the leader of Parliament’s forces in the English Civil War, ruled as Lord Protector after Charles I was deposed and executed. He died in office in 1658 and his son Richard, who succeeded him, was too inconsequential to hold power. When Charles I’s son returned to the throne as Charles II in 1660, the regicides who dethroned and killed his father were hunted down. For good measure, and even though Cromwell had decidedly left more than just office, his body removed from its tomb in Westminster Abbey, suspended in chains, tossed into a pit, and beheaded. The severed head was then placed on a pole and displayed before Westminster Hall for the next 24 years of Charles II’s reign as a warning to other would-be traitors. After 1685, it became private property and was periodically displayed as a curiosity, only reaching its final resting place on the grounds of Cambridge University in 1960.

Not even the most fervent Democrats can do any of that to Donald Trump, dead or alive, but they appear to hope that heaping shame and humiliation on him by legislative action could help remove their most dangerous rival from contention in 2024. That they will almost certainly fail to do so only adds to the farce, which is borne of little more than desperation.

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