The Constitutional Questions Behind Donald Trump’s Impeachment

The impeachment trial of former president Donald Trump on a charge that he incited insurrection for his role in the Jan. 6 Capitol riot is expected to start this week in the U.S. Senate. The trial marks unchartered territory in the history of the country: Trump is the first president to be impeached twice and also the first to be tried in the Senate after leaving office.

Perry Dane, a professor at the Camden location of the Rutgers Law School whose areas of expertise include constitutional law, examines the issues at the center of the former president’s defense and explains what it means to be tried for "high crimes and misdemeanors.”

Former president Trump’s legal team's main defense is that public officials cannot constitutionally be subject to impeachment trials after they leave office. Does the law supply a clear answer?

The law is not ringingly clear. Few questions in constitutional law are. But the consensus of constitutional scholars of all stripes, backed up by solid arguments, is that the Senate trial this week is constitutional.

The Constitution provides that any official convicted after an impeachment trial in the Senate is automatically removed from office. It also gives the Senate the authority, after conviction, to disqualify the official from holding any future office. If the Senate could not hold a trial after an official left office, that official would get a free pass in the last few weeks of his or her term without fear of disqualification from future office. Worse yet, an official who was sure of being convicted could just resign and cut off further punishment.  There is also at least some precedent for holding impeachment trials after a term in office has ended.

Are there other arguments to support proceeding with a trial of a former president?

Yes.  An even more convincing argument is grounded in the constitutional text read against the background of the practice of impeachment. The framers borrowed the institution of impeachment from British and American state practice. The British House of Commons could impeach anybody and the House of Lords, after trial, could impose any punishment. Former officials could be and were impeached and tried. 

Our Constitution took that ancient institution and reshaped it in some profound ways to meet the needs of our federal republic. The Constitution specifies the offenses that could be subject to impeachment – “Treason, Bribery, or other High Crimes and Misdemeanors.” It also spells out a narrow set of punishments – removal from office, which is mandatory, and disqualification from future office, which is discretionary. No guillotines here. But it nowhere rules out the impeachment and trial of former officials. It could have added that limitation but did not.

Even if former officials are immune from impeachment, former president Trump was impeached in the House of Representatives before he left office. The Constitution is clear that, once an official has been impeached, the Senate’s duty is to conduct a trial.

The former president’s attorneys are also arguing that Trump was protected by the First Amendment to “express his belief that the election results were suspect.”  Do you think that defense should prevail?

No.

The First Amendment vigorously protects political speech, especially from criminal prosecution.  That includes extreme and outrageous speech. The bar for finding someone guilty of criminal incitement is set very high.

But different rules apply in different contexts. An ordinary government employee can sometimes be dismissed for speech that impedes the efficiency of his or her workplace. A high government official can be dismissed for disagreeing with his or her boss. In this impeachment trial, the question will be whether former President Trump committed “high crimes and misdemeanors.”  

What does that mean?

“High Crimes and Misdemeanor” do not have to be a crime in the ordinary sense.  (And not every crime in the ordinary sense would be a “high crime.”)  The term “high” does not refer mainly to the severity of the offense but to its nature.  A “high crime and misdemeanor” is a fundamental breach of trust against the nation and the Constitution. 

Former president Trump persistently tried to undermine the results of a free and fair election. He tried to prevent the orderly and peaceful transition of power that distinguishes a functioning democracy from other forms of government. He repeated baseless allegations in rally after rally and then in phone calls to state officials. And, finally, he egged on a mob. He told them that “You have to show strength and you have to be strong.” The president’s distinct duty is to “take care that the laws be faithfully executed.” He swears to “preserve, protect and defend the Constitution of the United States.” He therefore had an affirmative responsibility to uphold the nation’s democratic norms. Instead, he did the opposite.

What do you say to Senators who might believe that only violations of the criminal law can count as “high crimes and misdemeanors”?

The Senate might even be justified (though this would be a closer case) in convicting the former president under the ordinary standard for criminal incitement.  As I said, the bar in such cases is high.  To be found guilty, a defendant must speak in a way that is both likely to incite “imminent lawless action” and must intend such incitement, all beyond a reasonable doubt. 

Again, though, it is worth keeping in mind that former president Trump’s speech on Jan. 6 was the culmination of a sequence of incendiary actions that began almost right after the election. Over several months he helped spawn the eager, paranoid mob that joined the rally at the White House. He encouraged the illusion that the election was stolen and allowed the hope that at the last moment, avenging forces would appear to punish his enemies and reinstall him in office. His words on January 6 were just the last little flame that it took to set the fire. And once the insurrection started, he did not immediately condemn it or demand that his followers retreat. Had fate and heroism not intervened, the damage to our democracy might have been much worse.