Trump’s Second Impeachment Trial Raises Questions of Process, Strategy

House managers’ treatment of trial as criminal procedure creates a hurdle for conviction

The second impeachment trial for former President Donald Trump began last week with impeachment managers focusing on whether the president incited a riot on Jan. 6. / LAW WEEK FILE

The first trial of a twice-impeached president got underway last week as a team of U.S. representatives worked to persuade the Senate to convict former President Donald Trump and bar him from ever again holding federal office. Whether the requisite number of senators will vote to convict Trump remains unknown until this week.

The impeachment managers’ trial presentation aimed at documenting for history the former chief executive’s political culpability for the Jan. 6 insurrection that caused five deaths and delayed the Congressional counting of electoral votes in the 2020 election.

Three days of prosecution sought to establish that Trump had incited the coup attempt. In tag-team style, the managers, led by Rep. Jamie Raskin, D-Md., used video footage, audio recordings and Trump’s own tweets in an effort to establish that the 45th president had set up his followers to turn their rage on Congress by insisting on his “big lie” that the outcome of the presidential election was fraudulently obtained and then turned them loose to sack the Capitol. 

House managers worked to prove that Trump was the “inciter in chief” of the coup attempted six weeks ago. They argued that Trump methodically encouraged his supporters to form a mob and encouraged them to consider violence an acceptable political tool. The nine House accusers, including Rep. Diana DeGette of Denver, also focused on Trump’s lack of remorse. The former president, Texas Democratic Rep. Joaquin Castro said, “left everyone in this Capitol for dead.” 

While incitement to an insurrection is a difficult charge to prove, the House is not obliged to meet any particular legal standard of proof. “That’s going to be a very hard thing to prove,” said Paul Bender, professor of law and dean emeritus at Arizona State University’s Sandra Day O’Connor College of Law. On the other hand, he explained, “it’s not a criminal trial, and the rules don’t have to be the rules of a criminal trial.” 

The Senate declined to specify a standard of proof in the resolution that adopted the rules for Trump’s impeachment trial. John Walsh, a partner at WilmerHale’s Denver office and a former U.S. attorney, said that, for all practical purposes, House managers should have aimed to establish Trump’s culpability by a preponderance of the evidence. “It does require sufficient proof to persuade the individual senators,” he said. 

Even with the flexibility afforded the Senate to determine for itself whether an impeached president has committed “high crimes and misdemeanors,” as required by the Constitution, the progress of both this trial and Trump’s first impeachment trial in 2020 indicates that Congress might have lost sight of the purpose of the procedure. “I don’t think [impeachment] was intended to be like a criminal trial,” Bender, who served as deputy U.S. solicitor general in the Clinton administration and has taught constitutional law since 1960, said. “I think the senators are supposed to be thinking, ‘is this guy somebody who we need to bar from federal office because of character defects or [because] he did such horrible things [and] we can’t let him do it again.’ It should be thought about in those terms.”

Walsh agreed that the focus of the impeachment trial should not be on whether House managers have proven incitement of insurrection beyond a reasonable doubt, as a prosecutor would have to do if Trump were charged with a violation of a statute forbidding that behavior. “What happened that day, which was so closely connected to what President Trump had been saying for months and what President Trump had said that morning, really amounted to a challenge to the legislative branch to protect itself and to protect the Constitution,” he said. If the Senate declines to convict, then “there’s an incredible and important historical record” that was made.  

Nevertheless, Bender said, the proceeding is unlikely to fulfill the intent of the Constitution’s drafters because the Senate is treating the impeachment as if it were a criminal case. The framers, Bender explained, chose the Senate to decide whether to remove the president and other government officials subject to impeachment should be removed from office or barred from “any office of honor, trust or profit under the United States” and not whether the impeached official is guilty of a crime. “This is not supposed to be a criminal trial,” Bender said. “If you wanted to have a criminal trial, you wouldn’t give it to the Senate.”

National news reports during the three days of trial that occurred before press time indicated not all senators had been paying attention to the proceedings and maintaining an open mind in the manner analogous to that expected of jurors. Various reports indicated that Republicans Marsha Blackburn of Tennessee, Mike Braun of Indiana, Richard Burr of North Carolina, Josh Hawley of Missouri, Cindy Hyde-Smith of Mississippi, Rand Paul of Kentucky, Rick Scott of Florida and Thom Tillis of North Carolina indicated various levels of distraction, including leaving the chamber during the House managers’ presentations, doodling, falling asleep and reading with feet up on a desk. 

Despite the apparent pattern of inconsistent or absent attention in the Republican caucus, Walsh thinks that at least some GOP senators will take seriously their duty to deliberate on Trump’s fate. “I’m confident that there will be a number of senators who do that,” he said. “Obviously, that may not be 100 senators.” Walsh explained that the senators’ experience of the insurrection may, at least, lead to a reduction of political hostility between the two major parties. “That event has got to weigh heavily on each of those 100 senators,” he said. “Perhaps this is far too idealistic of me, but I hope those discussions might actually lead to at least some senators [beginning] to think about whether” less polarization is desirable.

The Democratic advocates of impachment, who had secured the most bipartisan approval of a presidential impeachment in American history on Jan. 13, warned senators that acquittal would put the country’s democracy at risk. “We humbly, humbly, ask you to convict President Trump,” said Colorado’s Joe Neguse on Thursday. “If we pretend this didn’t happen, or, worse, if we let it go unanswered, who’s to say it won’t happen again?”

Even if Republicans recognize the possibility that it could, and even if GOP senators carefully consider Trump’s culpability, it is probably unlikely that House managers will convince enough Republican senators to join the 50 Democrats in a vote to convict Trump. Although six GOP senators voted with Democrats to reject Trump’s arguments that his second impeachment trial is unconstitutional and might therefore be at least somewhat likely to convict, eleven more Republicans would be needed to achieve the 67-vote threshold. Sixteen Republican senators are up for reelection in 2022 and they may face the risk of a primary challenger if they turn on Trump. Moreover, recent polling shows that about 70% of Republican voters would consider a vote to convict Trump to be an act of party disloyalty. 

For Bender, such modern political considerations have rendered the impeachment process one that would be unrecognizable to the framers, who “thought these senators were going to be picked by state legislatures, not by popular election.” Even if the men who wrote the Constitution in 18th century Philadelphia had anticipated the 17th Amendment, they would not recognize our modern political party system. The drafters of the impeachment clauses, Bender explained, would not have “conceived the political parties the way we have them now and certainly not primaries and being primaried.” They “wouldn’t have known what you’re talking about,” he said. 

Nor can those senators count on a secret ballot to conceal their decision from their state’s electorate. Article I, Section 5 of the Constitution provides that, in both chambers of Congress, “the Yeas and Nays … on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” That clause means a public vote will be inevitable if as few as 20 senators demand one. 

Of course, it is still possible, at press time, that Trump could be convicted. If so, he will not have any recourse to the Supreme Court or any other federal judge to question the Senate’s procedures or its decision. In a 1993 case called United States v. Nixon (no, not that Nixon), the justices ruled that disputes over how the Senate conducts an impeachment trial cannot be heard by U.S. courts.

While conviction would require two-thirds of senators present, disqualification does not. A decision to bar Trump from future federal office could pass with 51 votes. There may also be a possibility that, even if Trump is not convicted, the Senate could seek to impose such a ban under the 14th Amendment to the Constitution. The Article of Impeachment approved by the House on Jan. 13 includes reference to section 3 of that amendment, which prohibits any person who “shall have engaged in insurrection or rebellion” against the United States from holding “any office, civil or military, under the United States, or under any State.” 

While the Constitution does not define “insurrection,” Congress did so during the Reconstruction Era. According to a Congressional Research Service report released Jan. 29, the term covers efforts to “oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws.” 

The report concluded that interference with Congress “fulfilling the constitutional duty of certifying electoral votes” may “qualify as an execution of the laws of the United States.” 

The report also found that Congress could likely invoke the 14th Amendment by the simple majority needed to enact a statute that bars Trump from future political office. While not a complicated process, it may not lead to a quick outcome. According to Daniel Hemel, a professor at the University of Chicago Law School, any effort to bar Trump could result in a court challenge. “Trump’s defenders would no doubt argue that the law violates the bill of attainder clause,” Hemel wrote in a Jan. 12 editorial column in The Washington Post. While that challenge may not succeed, there are serious constitutional arguments around the question.

For Bender, the best course of action may simply be to leave Trump’s fate to the kinds of prosecutors that work in courthouses instead of the halls of Congress. “He can now be prosecuted, and maybe the best thing would be for him to be prosecuted now,” Bender said. “I really would be very disappointed if it doesn’t happen.” 

— Hank Lace

NOTE: The reporter is acquainted with Professor Paul Bender as a result of his attendance at Sandra Day O’Connor College of Law, Arizona State University, between 1988-1991.

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