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Originally published on February 10th, 2021

Former President Donald Trump was impeached for the second time on the 13^th of January by the House of Representatives, and his trial for inciting insurrection began in the Senate on the 9^th of February. Before raising the issue of whether such a trial is constitutional, and why that shouldn’t even be the primary question, let me tackle the question of whether Trump incited insurrection. The answer is, quite clearly, yes.

On December 19^th, 2020, Trump tweeted ‘Be There. Will Be Wild!’, reaching out for people to come to Washington D.C. (Barry and Frankel, 2021) on the day that Congress was to be ratifying the states’ electoral college votes. Then, on January 4^th, a memo was published by the (then) acting Secretary of Defence, Christopher Miller, in which he rejected a request by the Secretary of the Army, Ryan McCarthy, for support from the D.C. National Guard because of the increasing spectre of violence on January 6^th (Crosse, 2021). This memo states that without Secretary Miller’s subsequent blessing, none of the guards are allowed to be issued body armour, weapons, or helmets. The DC National Guard stationed there weren’t even allowed to physically interact with any of Trump’s supporters, unless in self-defence or in the aid of another officer (Sumner, 2021), which was of course, made much harder given that they had been completely disarmed from the offset. This is all despite a report issued by the FBI office in Virginia on the 5^th of January, warning that online traffic they had picked up on Twitter, in Facebook groups, and right-wing sites such as Parler, indicated that people would be coming to D.C. with violent and seditious intentions. They then referenced a particular online thread stating that ‘Congress needs to hear glass breaking, doors being kicked in and blood… being spilled’ (Barrett and Zapotosky, 2021). The next day, Trump ordered the thousands strong crowd to walk down Pennsylvania Avenue to the Capitol (Rev, 2021), in what I’m sure he thought would have been a peaceful, orderly protest, whilst surveying the sea of red hats dotted with tactical gear from his pulpit. Upon seeing this violence unfolding on every News network in the US, according to Secretary Miller, Trump resisted calling more of the DC National Guard in to help a distinctly understaffed Capitol Police, with Vice-President Pence eventually having to organise for the DC National Guard’s federalisation* (Collins, Cohen, Starr and Hansler, 2021). Once the Capitol came back under control, Trump tweeted a message expressing his adoration for and empathy towards his supporters who’d just committed the attack, ‘These things… happen when a sacred election victory is… stripped away from great patriots’. Underpinning it all is the lie that the former President propagated over, and over again. On January 2^nd, he plead with the Georgian Secretary of State, Brad Raffensperger, to ‘find 11,780 votes’ (CNN, 2021) after Republicans lost the state for the first time since 1992. In summation, Trump encouraged as many people to come to D.C. as possible by profusely lying to them, with the knowledge of people coming there with violent intentions, before sending the mob down to an insufficiently guarded (because of his administration) Capitol Building to protest the results of a legitimate election that, honestly, wasn’t very close.

Even without the attack on the Capitol Building, Trump’s rhetoric had been thoroughly seditious, and amounted to impeachable conduct, even when you leave aside the Capitol Riot. However, when you include the attack on the Capitol, the case is iron-clad, the conclusion irrefutable – Trump incited insurrection and poured gasoline on already raging seditious flames amongst his most loyal supporters. Trial proceedings opened in the Senate on February 9^th, and Trump’s legal team will not argue that he did not incite the riot, because they would be arguing this to a group of people whose life was put at risk because of the former President’s rhetoric.

Therefore, they will fall back on the argument that it is unconstitutional to try a former president, who is now a private citizen. Senator Rand Paul (R-Kentucky) argued this on the Senate floor and succeeded in tabling a resolution in which 45 Republican senators agreed with Paul that trying the former President in the Senate was unconstitutional (Foran, Raju and Barrett, 2021). In the course of writing this, the former President’s legal team has outlined their position in the trial, predicating their defence on the speech Trump gave before the riot as being within his first amendment right, and that the Senate does not have jurisdiction on the trial of a former official, calling it ‘political theatre’ (Cheney and Desiderio, 2021). Professor Brian Kalt writes about the constitutionality of Late Impeachment in an article he wrote in 2001, which was cited by Trump’s legal team to support their claim that “When a President is no longer in office, the objective of an impeachment ceases”, which Kalt labels a ‘flat-out misrepresentation’ (Kalt, 2021). The Former President’s legal team would only have to read the next page of the article to see Kalt write that ‘removal is not the only possible judgement mentioned in [Section 4, Article 2 of the Constitution]; disqualification is possible too’, thereby, according to their source, the objective of impeachment actually would not cease once the President has left office. However, the constitutionality of impeaching a former President is definitely not certain (although a consensus is forming amongst scholars of it being legal (National Constitution Centre, 2021)), so, for the sake of the argument, I’ll grant that the Senate’s jurisdiction doesn’t extend beyond the term of office of the defendant. In this case, what method of accountability would the Republicans rather have? Members of the Republican leadership agree with me that Trump’s actions were reprehensible, so surely they must be punished. Senator Cornyn (R-Texas) acknowledged that Trump’s actions were indefensible, however, he wouldn’t wish to see Trump punished because he had already “been held to account in the court of public opinion” and that it would set a “dangerous precedent” to convict a former President in the courts (Raju, 2021). Effectively, slapping Trump on the wrist and saying, ‘don’t do it again’. The party leadership are too scared to stand up to Trump and to his base, and this cowardliness will likely come out in their vote, also. A few Republicans will cross party lines to vote to convict (Mitt Romney, Ben Sasse, Susan Collins, and Lisa Murkowski seem most likely), but the supermajority necessary to convict (2/3rds) will most likely not be reached. Ultimately, the impeachment mechanism has proven to be toothless, as party discipline is too strong, and political incentives too often put above constitutional duty. To punish Trump and set a precedent to ensure that the next populist agitator that ascends to the highest office in the land, doesn’t also attempt insurrection, and upon failing, escape any repercussions by resigning, what Senator Cornyn called the ‘dangerous precedent’ must be created. For justice to be imparted, Trump must be tried in Criminal Court.

Presidents have always been adjudged to have some degree of immunity from prosecution because they ought to be concerned with as few matters as possible not related to the Presidency. In a 5-4 decision, it was ruled in Nixon v. Fitzgerald (1982), that the President had complete immunity from civil litigation (this immunity was slightly rolled back in Clinton v. Jones (1997)), although emphasised that this immunity does not extend towards criminal prosecution. Chief Justice Burger wrote that no argument “could sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances”, because of the United States’ “historic commitment to the rule of law” (Feldman and Sullivan, 2019). Going by this judgement, there is clearly ample constitutional room for the former President to be charged in a criminal court for crimes committed whilst in office.

Now comes the matter of determining whether Trump’s incitement of the crowd is protected by the First Amendment. The primary case reference for this is Brandenburg v. Ohio (1968), which concludes that advocating violent means to bring about political change creates such danger to the security of the state, that the state may outlaw such violent language (Feldman and Sullivan, 2019). However, this speech must meet the standard of being “directed to inciting or producing imminent lawless action” for the speech to be punishable. Trump danced around it violence neatly, using the word ‘fight’ over 20 times (Rupar, 2021), although he never explicitly called for violence in his speech to the crowd on January 6^th. However, in that speech he directed the mob to the Capitol Building, when it was under-protected on the day Congress was ratifying the states’ electoral votes. The former President had knowledge of this, and (one can assume) intentionally directed the mob down Pennsylvania Avenue to do his seditious bidding and halt the counting; the mob committing a crime in doing so. Therefore, the standard set out by Brandenburg can be seen to have been met – Trump knowingly, albeit subversively, advocated and set the stage for imminent lawless action.

Judging by the opening statements for Trump’s legal team on February 9^th, we’re in for a real barnburner over the next few weeks. Such insightful comments such as ‘Words are what make our Constitution, frankly’ and ‘I worked in this building 40 years ago – I get lost then and I still do now’ (Cillizza, 2021) really test the mind. This is going to be a spectacle with little substance from Trump’s side, because he couldn’t possibly argue that he wasn’t responsible for events on January 6^th, he was and that is clear to everyone. Therefore, he’s arguing that the Senate isn’t allowed to try him, another inherently flawed argument. I don’t care if it’s the Senate that tries him, or the courts, but somebody must; he cannot be allowed to get away with the attack he incited and the damage he inflicted.

* Trump rebutted this and said he did call in the DC National Guard, although it is quite clear he didn’t, due to the comments from senior officials, such as (then) Acting Secretary Miller 

-Fred

Bibliography:

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3.     Cheney, K. and Desiderio, A., 2021. Trump lawyers rip impeachment case as ‘political theater’. [online] POLITICO.com. Available at: <https://www.politico.com/news/2021/02/08/trumps-legal-team-says-impeachment-is-constitutionally-flawed-senate-cant-convict-467210&gt; [Accessed 8 February 2021].

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