Why Donald Trump Should Be Disqualified
The Former President Is Defenseless
I took a friend’s advice and read the Trump impeachment trial brief filed by the House managers. I also read Trump’s answer to the article of impeachment.
If you believe, as I do, that Trump incited the mob that attacked the Capitol during the confirmation of electoral college ballots on January 6, then the real question is whether Trump has any sound basis for asserting that he cannot or should not be subjected to trial in the Senate and disqualified from holding office in the future. The answer is pretty clearly “no.”
The House manager’s brief anticipates and addresses the two main arguments against trial and disqualification: (1) Whether the Senate lacks constitutional authority to proceed with a trial because Trump is no longer the President, and (2) whether the First Amendment protection for freedom of expression prevents the Senate from disqualifying the President after a trial.
Addressing the first point, the brief pretty much annihilates the argument that the House cannot impeach nor the Senate try a former official, relying on analysis by conservative as well as liberal constitutional scholars and historical evidence. Summarizing this argument, the brief states: “Accordingly, the Senate should not turn aside from centuries of its own practice and understanding. President Trump is personally responsible for inciting an armed attack on our seat of government that imperiled the lives of the Vice President, Members of Congress and our families, and those who staff and serve the Legislative Branch. The Nation cannot simply “move on” from presidential incitement of insurrection. If the Senate does not try President Trump (and convict him) it risks declaring to all future Presidents that there will be no consequences, no accountability, indeed no Congressional response at all if they violate their Oath to “preserve, protect and defend the Constitution” in their final weeks — and instead provoke lethal violence in a lawless effort to retain power. That precedent would horrify the Framers, who wrote the Presidential Oath of Office into the Constitution and attached no January Exception to it. President Trump must therefore stand trial for his high crimes and misdemeanors against the American people.”
Addressing the second point, the brief points out that long-standing Supreme Court precedents establish that the First Amendment is intended primarily to protect speech by ordinary citizens, and does not protect high-level government officials from restrictions or reprisals by the government. But it goes on to make the point, also supported by Supreme Court precedent, that the First Amendment would not protect Trump even if it applied: “Yet even if President Trump’s acts while occupying our highest office were treated like the acts of a private citizen, and even if the First Amendment somehow limited Congress’s power to respond to presidential abuses, a First Amendment defense would still fail. Speech is not protected where it is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ Given the tense, angry, and armed mob before him, President Trump’s speech — in which he stated ‘you’ll never take back our country with weakness,’ proclaimed that ‘[y]ou have to show strength,’ and exhorted his supporters to ‘go to the Capitol’ and ‘fight like Hell’ immediately before they stormed the Capitol — plainly satisfies that standard.”
Trump’s answer raises other purported defenses. He claims that we was denied “due process” when the House impeached him without holding committee hearings, conducting an investigation, or giving Trump the opportunity to be heard. This is nonsense in many ways, but most obviously because it ignores or seeks to distort what “due process” requires. The essence of due process is notice of the charges against one and the opportunity to be heard before being subjected to punishment or liability. Under the constitution, in essence, the House indicts but the Senate tries and convicts or acquits. No one is entitled to notice and an opportunity to be heard before being charged. Trump has been provided notice of the charges against him, and he will be given ample opportunity to be heard during the Senate trial. Nothing more is required. Second, Trump claims that imposing disqualification on him would constitute a Congressional “bill of attainder,” which is prohibited by the constitution. This, too, is a spurious objection. A bill of attainder is an act passed by Congress that imposes a punishment on an individual or class of individuals without judicial process. First, disqualification is not a “punishment.” It does not result in incarceration, financial fines, or any other punitive consequence. It simply excludes one from the privilege of holding office. Second, there is no judicial process available, and the constitutionally prescribed process — impeachment by the House and trial by the Senate — will have been followed.
Ultimately, is there any question that Donald Trump should never be permitted to hold federal office again? There is not.
Trump’s incitement of his supports on January 6, 2021 was the culmination of a lawless, unprincipled Presidency, devoted to stoking hatred, division and ultimately violence. The attack on the Capitol was simply the fulfillment of Trump’s refusal to commit to and ensure the peaceful transition of power, in violation of his obligations under the constitution and his oath of office. Donald Trump should not be trusted with a tricycle, much less the most powerful office in the nation and, arguably, the world. And even if unsuccessful, another campaign by Trump would only produce further discord.
Trial, conviction, and disqualification: this should be Trump’s legacy.
