In passing its resolution impeaching President Donald Trump just seven days before he leaves office, the House of Representatives has embarked on a new American legal, constitutional, political, and historical journey.
An End Without a Means
In its political haste to impeach President Trump, the House Democratic majority (along with ten Republicans) decided that an unprecedented constitutional proceeding could be created without any regular and rational report to the House and to the country. Because of the looming expiration of Mr. Trump’s term of office, there was no time to investigate the details of the violent invasion of the Capitol. And, indeed, such an investigation by various public agencies, including the FBI, is still in its infancy stage. The first Trump impeachment involved the work of three separate House Committees. The Judiciary Committee held public hearings with witnesses, pro and con, over a period of two weeks, and Mr. Trump was offered the opportunity to present witnesses and other evidence. He declined. The Committee released a 600-page report on its Articles of Impeachment. In considering these articles, the House Rules Committee then engaged in a long debate, pro and con, about how they should be handled for the vote of the full House. The Articles of Impeachment then passed the House after a single day of debate on December 18, 2019.
More Than Removal
With the Senate out of session (as of this writing), and with Senate Majority Leader Mitch McConnell stating that he will not call the Senate into session before the new Congress is convened, and with the uncertainty about when the House will “transmit” the Impeach Resolution to the Senate, the stage is now set for a never-before-contemplated impeachment trial of a former president.
As the Constitution (Article I, Sections 2 & 3) requires, the House by simple majority vote does the actual charging and accusing—the “impeaching”—and the Senate by two-thirds vote does the “convicting” of the person impeached.
According to Article II, Section 4, of the Constitution, “The President . . . shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The current Impeachment Resolution charges Mr. Trump with “incitement of insurrection” and characterizes that charge as an instance of “high Crimes and Misdemeanors.”
In Federalist 39, James Madison said that “the President of the United States is impeachable at any time during his continuance in office.” Under the Constitution (I, 3), the penalty for conviction of impeachment by the Senate is “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
Such an attempted disqualification has occurred only twice in American history, but never of a president. In 1797, Senator William Blount of Tennessee was convicted in the Senate in proceedings that were a kind of overlap of disqualification and “expulsion.” Blount had already abdicated his office. In 1876, Secretary of War William Belknap had already resigned his office when his impeachment trial in the Senate occurred. He was acquitted in the Senate trial, primarily because a substantial number of the senators thought that the Senate no longer had impeachment jurisdiction.
Now, the House Democrats are maintaining that the “and” disqualification really means “or disqualification”— that is, the two constitutional penalties are independent, not cumulative. In its rush, the House in its Impeachment Resolution makes no attempt to explain this historic change of such significance, and the word “disqualification” is not even mentioned until the last line of the Resolution. Instead, at the appropriate place for citing the penalty for impeachment, the Resolution brings up a new basis for impeachment.
Not Even Nixon
There is a historical comparison. And a recent one. It concerns a president who in his final days in office may have been even more controversial than Donald Trump. During the Watergate affair, President Richard Nixon resigned in August of 1974 after the House Judiciary Committee agreed to articles of impeachment against him, primarily for obstruction of justice and abuse of power. The Democrats held large majorities in both Houses, which they then increased in the November 1974 elections. They lacked the two-thirds in the Senate, but it was said that there was the distinct possibility that that at least five Republican senators would vote for conviction. But, critically, after Nixon’s resignation, the Congress made no attempt to continue impeachment proceedings for the extra purpose of disqualifying him from the opportunity to “hold and enjoy” other federal offices in the future. When the succeeding president, Gerald Ford, then pardoned Nixon, giving him immunity from prosecution in state or federal courts, there was a national and political consensus that the country should move on post-Nixon for the sake of national unity and the reduction of controversy at the highest level.
Not so, now, of course.
It’s Like the Civil War
While gliding over the intent behind and plain meaning of the additional penalty of “disqualification,” the Resolution further alleges that the 14th Amendment provides an additional basis for impeachment. Clause 3 of that Amendment was meant to preclude Confederate office holders from ever holding any federal or state public office again. The Impeachment Resolution cites the Clause’s language in that it concerns those who “engaged in insurrection or rebellion” against the United States. As is obvious, Clause 3 was intended to, and has only ever been applied to, the Reconstruction Era after the Civil War. It has never been otherwise applied.
A Disabled or “Unabled” President
The extent to which the House Democrats are willing to go in initiating unprecedented constitutional proceedings was proved by their effort to intimidate Vice President Mike Pence into removing President Trump from office by invoking the 25th Amendment, ratified in 1967, which was a response to President Kennedy’s assassination and the heart attack of President Eisenhower in 1955.
It is Section 4 of the Amendment that the Democrats have aimed at Pence. That Section provides that when a vice president, together with a majority of “the principal officers of the executive departments,” presumably the cabinet, now numbering 15 departments, transmits to the Congress a “written declaration that the President is unable to discharge the powers and duties of his office,” he shall “immediately assume” the role of “Acting President.”
Until January 2021, there was no doubt that the “unable” of the 25th Amendment refers to a severe physical collapse or disability, or to something like the stroke that left President Woodrow Wilson partially paralyzed for the last 18 months of his presidency. Today, no one has alleged that President Trump is physically or mentally unable to discharge the duties of the presidency.
In addition, who are the “principal officers” of the executive branch right now? How many cabinet secretaries, like resigned Attorney General William Barr, are still in office? Was the House proposing something like a coup by Mr. Pence and a grab-bag of temporary political appointees, unconfirmed by the Senate, and even including career civil servants?
Proof in the Senate
In its trial of the president, the Senate has the constitutional power (I, 3) to “try” and “convict” and render “judgment” against him. What evidence is necessary for conviction and judgment?
What is an “insurrection?” With its charge of “incitement of insurrection,” the House Resolution draws its inspiration from a little-used federal statute, 18 USC 2383, which provides for criminal prosecution of any person who “incites” an “insurrection” or “rebellion.” The Insurrection Act, 10 USC 252 et seq., which Mr. Trump in June 2020 stated he might invoke in the face of the riots in Portland, Seattle, and Minneapolis, allows a president, at his own initiative or at the request of a state governor, to send in federal troops, including the National Guard to suppress an “insurrection” or “rebellion.” The previously discussed post-Civil-War Section 3 of the Fourteenth Amendment does refer to “insurrection and rebellion.” (Sections 2 and 4 of the same Amendment refer to “insurrection” and “rebellion” concerning issues tangential to the present discussion.) But since there has never been nor can there ever be a precise legal definition of “insurrection,” we may refer to a common world-wide understanding, which is, it is accurate to say, an armed attempt to overthrow a government. And the associating of “rebellion” with “invasion” regarding the power to suspend habeas corpus (Const. I, 9) may be somewhat of an indirect confirmation of that commonly understood understanding.
Although investigations are just beginning, there has emerged no information that those protestors at the Capitol who turned into a violent and criminal mob had any such insurrectionary intentions or capabilities. And as of this writing, there is no evidence that any of those who actually entered the Capitol were armed.
President Trump’s words at the Ellipse delivered an hour before the protests at the Capitol began were sharp and strident—but as a matter of general political stridency and rhetoric could have been uttered by many politicians, left or right, in different or similar contexts, and, indeed, were similarly uttered by various public office holders in at-least implicit support of the unlawful assemblies and riots in the spring and summer of 2020. The only allegedly-inciting statement by the president that the Resolution includes is the one in which he said, “If you don’t fight like hell you’re not going to have a country anymore.”
But is that an incitement to insurrection when in the same speech—omitted from the Resolution and widely ignored by the media—Mr. Trump said that the crowd should “peacefully and patriotically make your voices heard,” and then followed up with the widely-ignored tweet, “Go home with love and in peace.”
How will the Senate address such questions as: What is an insurrection? How is insurrection different from mere terrorism? Were the events at the Capitol like the Civil War; that is, did anyone actually have the intent and plan to overthrow the government? Did President Trump by his words create the insurrection on that day or had some of the protestors already planned for it? Do Mr. Trump’s words of peace absolve him of the violence that later occurred at the Capitol? Does an inciter of violence have to be present at and participate in the actual violence? And what about the original, and by far the most important, version of the American principle of free speech—that is, freedom of political speech? Of course, the overall trial problem for Mr. Trump is that his words were followed an hour later by the beginnings of the lawlessness.
A Multiple-Party Insurrectionary Phone Call
The only other “evidence” that the Impeachment Resolution includes is the now-famous phone call by Mr. Trump on January 2 to the Georgia Secretary of State, Brad Raffensperger, in which it is alleged in the words of the Impeachment Resolution, that Mr. Trump attempted to “subvert and obstruct” the results of the election by telling Mr. Raffensperger “to find enough votes to overturn the Georgia Presidential election results” and “threatened” him “if he failed to do so.” Included in the call were at least six other persons, including the presidential Chief-of-Staff Mark Meadows. Mr. Raffensperger had at least one colleague on the call.
The call was recorded and the recording was then released by Mr. Raffensperger. The transcript is publicly available. In the call, President Trump did indeed maintain that he had won the election. He used the phrase word “find” votes several times—but never with any threats or words of violence, much less even the most indirect or hyper-tangential reference to anything remotely referring to insurrection. Most of the transcript deals with specific allegations concerning the final election count. The transcript shows that Mr. Trump says “I have to find 12,000 votes” and “I just want to find 11,780 votes.” He says “I’m not looking to shake up the whole world.” He does say to Mr. Raffensperger that “I’m notifying you that you’re letting it happen.” The phone call seems to end in a civil manner. Thus, it is certain that President Trump used no words of violence or insurrection there. If he had, such words would obviously have been widely publicized and also included in the Impeachment Resolution.
Several additional questions and observations should be mentioned.
It is difficult to imagine that there is any national advantage to be gained by the continuation of the Trump impeachment in the Senate. Unlike Watergate, the refusal of the contemporary Democratic party to let the Trump dogs lie down and go to sleep seems to be a deliberate act of divisiveness. No “unity” there.
Will the conduct of the trial under the new Democratic majority in the Senate be as hasty as the impeachment? In other words, will Donald Trump be afforded due process? Will it be necessary to call Mr. Raffensperger, as well as other phone-call participants, as witnesses? Will Mr. Trump himself demand to testify? On the other hand, Mr. Trump has the separate purpose of avoiding the accumulation and presentation of evidence at his impeachment trial because of the undoubted intentions of various state or perhaps even federal prosecutors of bringing criminal charges against him. The Manhattan attorney-general opened an investigation of his tax returns in 2019, which the Supreme Court approved of in a decision in 2020. In Nixon v. Fitzgerald (1982), the Supreme Court ruled that a former president is immune from civil damages for his official acts as president, but that he has no criminal immunity. And, as pointed out above, that decision confirms that the Impeachment Clause (I,3) which holds that a removed president is still subject to out-of- office “Indictment . . . according to Law,” is not the only constitutional means of dealing with Mr. Trump.
The impending role of Vice President Kamala Harris as the presiding officer, the “President of the Senate” (Const. I,3), in an evenly-divided body has not yet given rise to public discussion. Even though Chief Justice Roberts will “preside” (I,3) at the impeachment trial, in an evenly divided Senate, will Ms. Harris have to be the floor leader for the prosecution, thus setting up the spectacle of the succeeding executive branch organizing and controlling the impeachment of the previous executive and the first of what could be numerous situations over the next four years of the executive branch deciding the work of the Senate?
If “disqualification” from future office is its own independent basis for impeachment, what former “civil officers” (II,4), Pence and former attorney general Barr, for instance, could be impeached? And in the spirit of the moment, proposals to expel or censure Republican Senators Josh Hawley and Ted Cruz and North Carolina freshman Congressman Madison Cawthorn, who defeated his Democratic opponent by twelve percentage points, have arisen. It takes a two-thirds vote (I,5) to expel a member of the House and Senate but only a simple majority vote to censure.
The only hesitation voiced by anyone in the Democratic party about the trial to remove a president who has already left office involves the question about how much the impeachment trial will distract the political climate and the country from the start of the Biden Administration. That seems to be a perceptive political opinion that could have counseled against the whole impeachment undertaking. And one wonders how much the Biden staff agrees. But is the reason for the impeachment simply that it was the independent and determined purpose and desire of Speaker of the House Nancy Pelosi? Until the most recent times, the Speaker of the House was regarded as someone who represented the whole House. The political agenda was controlled and managed by the leader of the majority party. When she regained the Speakership in 2018, Ms. Pelosi completely repudiated that tradition. It was only with her formal agreement that the first Trump impeachment was ever effectively launched. And she then took over as leader and spokesperson of that proceeding. The second Trump impeachment, conceived of and launched literally in a matter of hours, is her exclusive work. Per the federal statute, 3 USC 19, enacted pursuant to the Constitution (II, 1), the Speaker of the House is second in the presidential line of succession after the Vice President.
With an impeached and removed president, the Speaker is first in line.
The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.
The featured image is courtesy of Pixabay.