Before we look at issues peculiar to the impeachment for inciting an insurrection, let’s remember some key ideas from the first impeachment.
Impeachment is a political proceeding, not a criminal or civil proceeding. What must be proved is not a crime, as defined by criminal statutes, but a “high crime or misdemeanor” – basically, an abuse of the powers of office. The standard of proof is not “beyond a reasonable doubt” or even “a preponderance of the evidence.”
Procedurally, the Senate has the “sole power” to impeach, which means that every time an impeachment is sent to the Senate for trial, it has to decide what the rules will be. The Senate has to determine, by agreement or by majority vote, whether there will be witnesses, who the witnesses will be, whether they will be cross-examined, whether testimony will be by deposition or live, and how much time will be allotted. The Senate is not constrained by court rules.
Donald Trump’s second impeachment raises some new legal issues, specifically:
- Does the US Constitution permit an impeachment be tried after someone leaves office?
- Did Donald Trump incite an insurrection, as charged?
- Does the First Amendment preclude a conviction on impeachment where the charge is inciting an insurrection?
Constitutionality. The Supreme Court has never decided whether a President can be impeached after leaving office. But there have been cases in which a Senate impeachment trial happened after a person left office. Expect to hear a lot about the Belknap case during the arguments on constitutionality.
The argument that it would be unconstitutional to convict Trump rests upon the meaning of the word “and,” or maybe upon a comma. The text of Article I, Section 3, Clause 7 is: “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 ….”
Trump’s legal team will argue that because of the word “and” in clause 7 there can be no disqualification from future office unless there is also a removal, which cannot occur in this case because Trump’s term has ended. (Not sure how to square that argument with Trump’s claim that he won, and is still the President.)
House managers can be expected to argue that the language does not require that interpretation. The Constitution lists two possible judgments; using the word “and” between them is normal, and should not be read as imposing conditions. This argument may be buttressed by the fact that there are separate votes on removal and disqualification, so they should be seen as alternative remedies.
The House managers can also be expected to argue that a person who has abused political office for personal gain should not be able to escape consequences by resigning, particularly when that would permit the person to hold future office and retain government benefits. Expect to hear the word “accountability” quite a bit from the Democrats.
Pundits and others will assert that the constitutionality argument is a fig leaf, designed to save Republicans from taking a difficult vote. Democrats might suggest that the issue of unconstitutionality should be left for the Supreme Court, and that Senators should vote based on whether they think Trump incited an insurrection. Neal Katyal, a former US Solicitor General, has suggested there should be two votes, one on constitutionality, the other on whether, assuming impeachment is constitutional, Trump should be convicted. It is not clear to me whether Democrats can frame the issue that way.
Inciting an insurrection. The fundamental charge against Trump is that he incited an insurrection. That breaks down to two questions: 1) Was what happened at the Capitol an insurrection; and 2) Did Trump incite it? To answer these questions, let’s turn to our friends at Merriam Webster:
Insurrection: an act or instance of revolting against civil authority or an established government
rebellion, revolution, uprising, revolt, insurrection, mutiny mean an outbreak against authority. rebellion implies an open formidable resistance that is often unsuccessful. open rebellion against the officers revolution applies to a successful rebellion resulting in a major change (as in government). a political revolution that toppled the monarchy. uprising implies a brief, limited, and often immediately ineffective rebellion. quickly put down the uprising revolt and insurrection imply an armed uprising that quickly fails or succeeds. a revolt by the Young Turks that surprised party leaders. an insurrection of oppressed laborers. mutiny applies to group insubordination or insurrection especially against naval authority. a mutiny led by the ship’s cook.
My initial impression was that TV pundits were overreacting when they called the riot at the Capitol an insurrection. First, I did not think of the protesters as armed. I later learned that flagpoles were topped by spears and pitchforks, and that they were used to bludgeon police officers, and that Trump supporters carried mace, pepper spray and tasers. Second, I thought that because the protesters did not intend to take over and run the government, they were not insurrectionists. But that was mistaken. To qualify as a revolution, they would have to substitute their own government. But using violence to resist counting the electoral votes and to intimidate members of Congress into installing their preferred person as President ought to justify the term “insurrection.”
As far as I know, Trump’s lawyers do not deny that the events at the Capitol qualify as an insurrection; I don’t expect too much argument about that. They will apparently focus their arguments on whether Trump incited the riot. Once again, we turn to Merriam Webster:
Incite: to move to action : stir up : spur on : urge on.
Under the normal meaning of the word “incite,” it is not required that Trump caused the protesters to do something they would otherwise not have done. But that is what I expect his lawyers to argue. Expect Democrats to point to instances in which Trump stirred the crowd up, and urged them on, either by actions, statements, or by a failure to act to suppress the insurrection.
First Amendment. Trump’s lawyers will rely heavily on the First Amendment to avoid a conviction if the Senate gets to the merits of the case. This is a difficult area of the law, but it will help to know a few things when you are listening to the arguments.
The First Amendment does not apply to criminal conduct. If you tell a hit man “Here is $10,000 to kill my spouse,” the First Amendment will not prevent your conviction for murder. There are many other instances where speech is an essential part of criminal conduct – for example fraud and conspiracy. You can’t rely on the First Amendment to justify your refusal to pay taxes. Ignore Senators who argue that the First Amendment lets a person say whatever they want, without facing consequences.
Second, even when the First Amendment does apply, there are a number of exceptions. Most relevant is the one holding that the First Amendment does not allow a person to incite violence. The 1969 Supreme Court case of Brandenburg v. Ohio established a two-part test: first, the speech must be directed to inciting or producing imminent lawless action; second the speech must be likely to incite or produce such action.
This is where the argument on the merits should be focused. If past performance is any indication of future conduct, I would not count on it. As you listen to the proceedings, you might try to pick out the bad arguments, and identify why they are bad, as I did with the House and Senate arguments in the first impeachment. You might also try sketching out what you think is a good argument one way or the other.
Happy listening!
