The Latest Attempt at Impeachment Jumps the Shark

Stephen Kershnar

The Attempted Impeachment Jumps the Shark

Dunkirk-Fredonia Observer

January 25, 2021        

             The Democrats’ latest attempt to impeach and convict Donald Trump will be a new low for Congress, no mean feat.   

            The House impeached Trump on the following basis, “Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.” House members specifically claimed that, “He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore”. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.”

            The Democrats’ and their media co-conspirators’ hypocrisy is truly a wonder to behold. Few, if any, Democrats got their panties in a twist when on July 1^st, Antifa and BLM protesters drove Trump from the White House into an underground bunker. Nor did they get their knickers in a bunch when protesters forcibly occupied the Capitol in support of now discredited claims by Christine Blasey Ford, Judy Munro-Leighton, Julie Swetnick, etc. More than 300 were arrested. They did not collapse onto fainting couches when hundreds were arrested for rioting during Trump’s inaugural celebration. They did not even tightly clutch their pearls when in 2011, union thugs stormed and occupied the Wisconsin State Capital. And, of course, they said nothing this past summer when rioters burned cities, destroyed statues, injured police, killed more than two dozen people, and looted stores. 

            There is no case against Trump.

First, consider the facts. Trump did not incite violence against the federal government. Forbes’ Jemima McEvoy reports that rioters planned the violent protests in advance of the relevant Trump speech and tweets. The day before the riot, the FBI was aware of plans for violent protest and warned the Capitol Police. According to the New York Times’ Lauren Leatherby et al., the protests appeared to get violent 20 minutes before the speech ended. It is more than a mile between where the speech was given and where the Capitol’s barriers were breached.

In addition, Trump did not encourage violence. He told people at the rally to “peacefully and patriotically make your voices heard.” His tweets were also above board. One of them asks that, “[E]veryone at the U.S. Capitol to remain peaceful. No violence!”

In addition, the out-of-hand protests were not seditious. They did not attempt to overthrow the government. Reuters quotes a Department of Justice official who stated that there was no direct evidence of a plot to kidnap or kill lawmakers.

Second, consider the law. If one agrees with Harvard’s Alan Dershowitz that impeachment and conviction require that a government official commit a crime, Trump conduct is constitutionally protected. Specifically, the First Amendment protects Trump’s speech and tweets. Here is one of his statements, “[I]f you don’t fight like hell you’re not going to have a country anymore.” Here is another. “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!" In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court held that this sort of speech may be criminalized only if it is intended to incite imminent lawless conduct. Clearly, this was not true here.    

In addition, the Senate lacks jurisdiction. Article II Section 4 states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Limiting this grant of authority is Article I Section 3. It states, “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

The language of the provision addresses what may be done to the President and Donald Trump is no longer the President. As George Washington University’s Jonathan Turley points out, in every other part of the Constitution, the reference to “the President” or other specific officeholder refers to the current officeholder, not people who have held it in the past.

There have been two cases that purportedly show that the Senate may disqualify someone for office who has not been removed from office. One involved former Tennessee Senator William Blount. Blount, who signed the Constitution, claimed that disqualification did not apply to him because he was a private citizen. In 1799, following impeachment, the Senate refused to even hold a trial.

In 1876, the Senate voted on whether to dismiss the impeachment-charge against former Secretary of War William Belknap. It narrowly failed to do so and then acquitted him. One tightly contested vote is not a good enough reason to reject the plain meaning of a Constitutional provision and clear pattern of Constitutional language.

Nor are there good policy reasons to allow the senate to disqualify former Presidents from office. This opens the door to endless settling of scores. But if we are doing so, here are two people meriting prompt disqualification: Barack Obama (Russia Hoax crimes) and Bill Clinton (campaign-finance crimes and rape). Hell, we can even disqualify dead people for criminality or gross incompetence. Consider LBJ and Woodrow Wilson.

Some leading figures – for example, Ted Cruz, Alan Dershowitz, and Jonathan Turley – recognize that there is no legal case against Trump but criticize his rhetoric. I think his rhetoric was admirable, expressing many Americans’ legitimate outrage at the attempted coups, censorship, constitutionally dubious lockdowns, and election illegalities. Still, this is a topic for another day.