Trump’s Impeachment Trial

Anna Malakhouskaya | February 5th, 2021

Since the Capitol Hill riot took place on January 6th, there has been much discussion regarding Donald Trump’s ultimate role in the incident and his culpability. On January 13th, it was revealed by the House Democrats that they would be moving forward with an article of impeachment against Trump. This action made Trump the first President to be impeached twice! For those unfamiliar, impeachment is a process where the legislative body of a particular administration files charges against a government official who they consider to have committed an illegal act whilst in office. In the United States, impeachment is a two step process. First, the House of Representatives puts forth charges, known as articles of impeachment, against a government official, where they detail why the actions of the office were illegal. Then the House votes to either adapt (accept) the article(s) of impeachment, with a simple majority or dismiss them. If the article(s) are adopted they are moved into the US Senate. The US Senate is where the official trial is held and both sides are able to make a case in regards to the charges. Following the trial, the Senate votes on whether to impeach the official and remove them from office, with two-thirds of the vote or to acquit them.

At this moment, the US House of Representatives has voted to adopt the articles of impeachment and the Senate trial is to begin on February 9th. The rest of this piece will be dedicated to dissecting the arguments put forth by both legal teams and trying to make sense of the legal implications of impeaching a president who is no longer in office.

The case put forth by House Democrats states “Trump’s words before the attack on the Capitol constituted high crimes or misdemeanors"(1). The prosecution gives three arguments that Trump committed these high crimes: 1. at the January 6th rally, Trump continued to falsely claim that he had defeated Biden in the election, 2. Trump encouraged the crowd to riot, 3. Trump spent the last few months pressuring election officials to change the election results. Through these actions, the prosecution argues: “Trump willfully made statements that encouraged — and foreseeably resulted in — imminent lawless action at the Capitol. Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced Members of Congress and the Vice-President, interfered with the Joint Session’s solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts”(2). The crux of the prosecution’s argument lies in the idea that after months of perpetuating false information about the US election, Trump’s remarks at the January 6th rally was the ignition that his supporters needed to storm the Capitol. The supporters went to the Capitol to try and harm officials that Trump had been saying for months had intentionally falsified election results. The rioters went in there as Trump said in his January 6th speech to “fight like hell” to take back what those officials had supposedly stolen from them.

Trump’s legal defense is centered around two points, (1) the First Amendments’ protection of free speech, and (2) Trump no longer being President. In regards to the first point, Trump’s legal team argues that “[l]ike any citizen, Trump is protected by the First Amendment to ‘express his belief that the election results were suspect'”(3). The defense is essentially arguing that as it is outlined in the US constitution, all citizens are entitled to free speech, regardless of how unpopular the opinion is. In addition, it is said that Trump’s speech on January 6th was not a call for violence but rather a passionate speech to his supporters. If the speech is found to have been intentionally urging listeners to engage in violence, that would mean the speech is not protected by the First Amendment. The second point Trump’s defence team makes is that “he [Trump] is no longer in the White House and the Senate, therefore, doesn’t have jurisdiction to try him in an impeachment case”(4). It is argued that because Trump has left office at the time of the trial, the Senate has no authority to hold a trial against him. In addition, if the purpose of an impeachment trial, they argue, is about removing “corrupt” government officials from office, impeachment would not be able to fulfill this key purpose as Trump has already left office.

At face value, the second argument put forth by the Trump legal team may seem reasonable. However, it must be made clear that the act of impeachment at this time is aimed at both preventing Trump from ever running for public office again, as well as holding him accountable for crimes he committed whilst in office. As of January 6th, 2021, Trump was still the President of the United States, therefore, if he is found to have abused his power of office and incited the insurrection he should be punished. “The framers of the Constitution intended for the impeachment power to sanction current or former officials for acts committed while in office — with no “January exception”(5). Trump’s job at the time of the trial should have no bearing on whether he is held accountable for his actions. If Trump is guilty, he committed his crime whilst in office, therefore should be punished according to the rules of that position he held. A simple analogy can be made to illustrate the logic: if a retired police officer is found to have been involved in several instances of police brutality and using excessive force, should they not be prosecuted because they are no longer a police officer?

This case is by no means clear cut, in a court of law the case could go either way. Nevertheless, this is not a regular court case, the case is not just about the evidence. Trump’s second impeachment trial, much like the first, is more a game of political loyalty than solid arguments. The only way for Trump to be impeached is for two-thirds of the Senate to vote yes, meaning 17 Republican Senators must vote to convict a former Republican President. The difficulty of that task is put into perspective when one considers that only one Republican Senator voted to convict Trump in his first impeachment trial. The trial starts in a few days and there is still a large amount of uncertainty from both sides. However, regardless of the result, this is an extremely interesting legal case that poses many legal questions about how far the protection of the First Amendment goes and if the law truly applies to all people.

Endnotes

1. Amber Phillips and Peter W. Stevenson, "What happens next in the impeachment of President Trump?," The Washington Post, last modified February 5, 2021, https://www.washingtonpost.com/politics/interactive/2021/trump-impeachment-guide/

2. Phillips and Stevenson, "Impeachment of President Trump."

3. Eric Tucker, Jill Colvin, and Mary C. Jalonick, "Here Are the Key Takeaways from the Legal Filings for Trump’s 2nd Impeachment Trial," Global News, last modified February 3, 2021, https://globalnews.ca/news/7618990/trump-impeachment-filings-takeaways/.

4. Tucker, Colvin, and Jalonick, "Trump’s 2nd Impeachment Trial."

5. Tucker, Colvin, and Jalonick, "Trump’s 2nd Impeachment Trial.