You can read my latest piece for The Washington Post on their website, or I’ve cut and pasted it here:
Suppose an incumbent president up for another term decides not to honor the result of the election. Suppose he tries every means available to keep himself in office: He pressures local officials to “find” votes, he files dozens of lawsuits challenging the results, he persuades millions of his followers that the election was stolen, and he tries to weaponize the Justice Department to challenge the election — all to no avail. The officials resist the pressure, and the courts reject the legal challenges. All that remains are the millions of followers who believe the election was stolen.
In the case of such a president, the most dangerous time is just before the end of his term. This is when — having exhausted other means of remaining in office — he might seek to disrupt the peaceful transfer of power by inciting a violent coup.
The article of impeachment against former president Donald Trump alleges that Trump did exactly that: After various attempts to overturn the election failed, he incited an insurrection against Congress with the goal of having himself declared the winner of the election. The remedy sought is to disqualify Trump from holding office in the future. His trial is beginning Tuesday.ADhttps://beba66d88bc861b23bb2e5ef76977f7f.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
But Trump’s impeachment trial brief, filed with the Senate ahead of the proceedings, puts forward two theories of the Constitution which, taken together, create what we might call a last-minute-violent-coup exception. The idea that Trump’s defense is advancing, intentionally or not, is that presidents can violate their oath of office — or even incite a rebellion — and avoid a Senate trial as long as they do these things close to the end of their time in office.
Trump argues that the impeachment article was drafted hurriedly before a thorough investigation could be conducted; therefore, it’s fatally defective because the House of Representatives violated Trump’s “due process rights” to a thorough investigation. He insists that a thorough inquiry is necessary even if the alleged crime is filmed, broadcast on television and witnessed by members of Congress. Trump also argues that the Senate does not have jurisdiction to conduct an impeachment trial after he leaves office.
While both of these interpretations of the Constitution are easily debunked — and legal scholars have debunked them — these two arguments, if relied on, would create a situation where a sitting president can stage a last-minute violent coup as long as there isn’t time left in his term for a lengthy investigation into the coup or a trial on the resulting impeachment charges.ADhttps://beba66d88bc861b23bb2e5ef76977f7f.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
To reach his conclusion that “the Senate lacks the constitutional jurisdiction to conduct an impeachment trial of a former president,” Trump’s brief distorts the plain language of the Constitution and defies common sense.
For example, the Constitution 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.” (Emphasis added.)
The plain meaning of this provision is that punishment for a Senate trial can only include removal from office and disqualification from holding office in the future — the Senate, in other words, can’t add on other punishments (such as prison time). Trump, however, interprets that “and” to mean that he can be only be disqualified from holding office in the future if he is first removed from office. “Conviction at an impeachment trial,” the brief states, “requires the possibility of removal from office. Without that possibility, there cannot be a trial.” Thus, as Trump interprets this provision, he cannot be removed from office because he is no longer in office. Therefore (according to Trump logic) there is no point in holding a trial, and so the Senate has no authority to conduct a trial.ADhttps://beba66d88bc861b23bb2e5ef76977f7f.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
According to this reasoning, an impeached president could simply resign before a trial to avoid disqualification for future office.
Trump’s reading of the Constitution also ignores the meaning of “all.” The Constitution states that “The House of Representatives shall … have the sole Power of Impeachment,” and “The Senate shall have the sole Power to try all Impeachments” (emphasis added). All means all. The House impeached Trump while he was in office for offenses committed in office. Now the Senate has the power to try that impeachment. The Constitution doesn’t say, “The Senate has the power to try all impeachments so long as the official remains in power at the time of the trial.”
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Trump’s brief also wrongly states that the Constitution requires “due process” in the form of a lengthy “inquiry.” The former president complains that “House Democrats completed the fastest presidential impeachment inquiry in history” and that “Speaker Pelosi did not grant the President any of his Constitutionally mandated due process rights.” He doesn’t state what these “mandated” rights are — because there are no such mandated rights.ADhttps://beba66d88bc861b23bb2e5ef76977f7f.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html
While the Bill of Rights affords criminal defendants due process before they can be charged, the Constitution contains no such requirements for impeachment. The Constitution specifically states that criminal indictment can happen after the impeached president leaves office. That clearly indicates that impeachment is not a criminal proceeding. The Senate trial is where Trump can answer the charges.
If an inquiry might take weeks — or months — a president so inclined has plenty of time to attempt violent insurrections without worrying about impeachment, a Senate trial or disqualification from holding future office.
In making its decision, Congress has to decide what message it wants to send to a future president inclined to find ways to stay in office after the term ends. The arguments presented in Trump’s trial brief even raise the question of whether Trump — who has been through impeachment once before and should know how the process works — calculated that he couldn’t be impeached for a last-minute insurrection because he’d be out of office before the trial could be conducted. Either that, or his insurrection would succeed. A president who remained in office by inciting violence would not fear Congress. As the saying goes, treason never prospers, and what is the reason? Why, if it prospers, none dare call it treason.
Senate Republicans who wish to acquit Trump have a choice: They can ignore the evidence and find that he didn’t incite an insurrection, or they can agree with Trump that the framers of the Constitution deliberately created a last-minute coup exception. Or, of course, they could vote to convict. We’ll see which one they pick this week.
