There is a better defense: no defense...
In a matter of days, this country will face an unprecedented Senate trial. The Senate not only will try a president for a second time but will do so after he has left office.
Vice President-elect Kamala Harris assures us the Senate can politically “multitask” to deal with an impeachment, an incoming Biden administration and a pandemic.
However, the threshold question is whether this is constitutionally one of those tasks — and for soon-to-be citizen Donald Trump, the best defense may be no defense at all.
In fairness, people on both sides are struggling to deal with this novel impeachment. While I have stated that I do not wish to serve as the president’s counsel, I have spoken to members of Congress and the White House on the historical and constitutional backgrounds for a trial. From a purely strategic perspective, I believe Trump may be wise to skip any trial.
For a notorious counterpuncher, avoiding a fight might be the most difficult decision of all, particularly because he has obvious defenses.
First, he was denied due process when the House held an unprecedented “snap impeachment” without a hearing or inquiry even though a trial likely would not occur immediately.
Even a one-day hearing would have allowed evidence to be discussed as well as a formal request for a response.
Second, the impeachment article is poorly crafted and poorly conceived, built around assertions that Trump’s Jan. 6 speech to supporters was an “incitement to insurrection.” His speech raised potentially impeachable grounds; I condemned it as he gave it and opposed his challenge of electoral votes from the outset. But as I wrote previously, it would have been far better to censure him for it in a bipartisan, bicameral resolution.
While impeachment can be based on noncriminal grounds, Trump’s speech alone did not amount to criminal incitement. Absent direct evidence of intent, a criminal charge would likely collapse in an actual trial or on appeal on First Amendment grounds. Trump expressly called for his supporters “to peacefully and patriotically make your voices heard.” He told them to go to the Capitol “to cheer on our brave senators and congressmen and women,” to “fight like hell” to challenge the election, and to remind unsupportive Republicans that their actions would not be forgotten. It was a reckless speech — but, in a court of law, it would constitute protected speech.
Despite the strength of such defenses, the president must first decide whether he wants to sit for trial at all. He can legitimately argue that a private citizen cannot be impeached and that the Senate cannot remove a person from office who has already left.
Article I, Section 4, of the Constitution states that the sole purpose of an impeachment trial is whether “the president, vice president and all civil officers of the United States, shall be removed from office.” While the Senate can later add a disqualification from holding federal office again, that is only after removal is decided — because it is a question of the penalty, not the purpose of the proceeding.
The Constitution refers to a present-tense status of “the president.” That status is key to other provisions bestowing official powers and privileges, which do not linger after leaving office. No one would argue that Trump could continue to exercise those powers once President-elect Biden is sworn in. Yet a Senate trial would insist that, while Trump has no continuing powers, he remains subject to continued penalties tied to the office. Moreover, the stated purpose of the impeachment trial is whether a president “shall be removed.” Thus, the only person constitutionally subject to an impeachment trial would be the sitting president, Joe Biden.
This issue has been debated since the first impeachment in 1797, when Sen. William Blount of Tennessee faced allegations of conspiring to help Great Britain seize what is now Louisiana. Blount was expelled from the Senate before being impeached, so he insisted he was not subject to trial and refused to appear. The Senate apparently agreed and dismissed the case — just 10 years after the Constitution’s ratification, with most of the Framers still alive and some serving in Congress. (Indeed, Blount was one of its signers.)
The second case fared little better. In 1876, former Secretary of War William Belknap was tried even though he resigned before being impeached. Almost half of the senators voted that they did not have jurisdiction, and Belknap was later acquitted, in part due to doubts over the trial’s legitimacy.
The absence of a defendant or defense counsel might not be the only curious element in this trial. It is unclear, for example, if Chief Justice John Roberts would be called upon to preside. After all, the Constitution stipulates that when “the President of the United States is tried, the Chief Justice shall preside” — but the president will be Biden, not Trump.
The failure to put on a defense is not an admission of guilt. The Senate has a duty to resolve whether there is a valid impeachment trial to be held and then whether the constitutional standard has been satisfied. If the Senate does not dismiss the case in a threshold vote, Trump can treat the proceeding as an extraconstitutional act because he is no longer subject to removal. If the Senate were to convict, he would have standing to challenge any disqualification from future federal offices. He could well prevail, and the Senate would have created a precedent against itself: history’s first judicial reversal of an impeachment verdict.
Courts have long maintained that impeachments are left to Congress. Yet this is different. This is a question of whether a private citizen can be subjected to a proceeding that is expressly committed to the removal of officeholders. Impeachments go to the status of an officeholder, while indictments go to the status of an individual. If prosecutors believe Trump incited insurrection, they should charge him. However, the Senate must decide if it wants to hold a trial based on a legal fiction: a vote to remove someone who is no longer in office.