Below is my column in Hill on why President Donald Trump might consider skipping the upcoming Senate trial. This is an expanded version of this column. Rumors continue to suggest that Trump is viewing Rudy Giuliani as an attorney – a role seen as an open contempt for the Senate and, as Karl Rove noted, would increase the likelihood of conviction. There is a better defense: no defense.
Here is the column:
In a few days this country will face an unprecedented trial against the Senate. Not only will the Senate try a president for a second time, but it will do so after he resigns.
Vice-President-elect Kamala Harris assures us that the Senate can politically “multitask” to deal with an impeachment, an incoming Biden administration and a pandemic. The threshold question, however, is whether this is one of these tasks constitutionally – and for future citizens Donald Trumpthe best defense can be no defense at all.
In fairness, the people on both sides are struggling to cope with this novel impeachment. While explaining that I do not want to serve as the presidential lawyer, I have spoken with members of Congress and the White House about the historical and constitutional background to a trial. In my 1999 Duke Law Journal article on impeachment, I wrote: “[t]However, the Senate majority rightly believed that impeachments had historically been extended to former officials such as Warren Hastings. ” See Jonathan Turley, Senate Trials and Faction Disputes: Impeachment as a Madison Device, 49 Duke Law Journal 1-146 (1999). It was actually used retrospectively in the UK. However, there are significant differences in the application of impeachment in both countries. Indeed, the colonial impeachments were strikingly different in many ways. As I noted in the Duke’s article, “Even if the only punishment is disqualification from future office, the open presentation of evidence and witnesses is exactly what was missing in colonial impeachments.” This has remained an open question and much controversial in the United States, as I found in my later article in North Carolina. Jonathan Turley, The “Executive Function” theory, the Hamilton affair, and others Constitutional Mythologies, 77 North Carolina Law Review 1791-1866 (1999). The point of this piece is that impeachment is not limited to violating an executive function, but can include other violations such as perjury. We have the value of a trial for public judgment on past conduct and the cost of a retrospective trial of the constitutional system. That has remained unsolved, although my views on aspects of the issue have evolved over the past 30 years. The previous discussion was about how impeachment plays some kind of dialogical role in our society. Such attempts, as with Trump, can have value. However, there are also serious compensation costs that are equally evident in Trump’s case.
From a purely strategic point of view, I believe Trump might be wise to skip any process.
Avoiding a fight could be the toughest decision for a notorious counterpuncher, especially because they have obvious defenses. First, he was denied due process when the House conducted an unprecedented “rash impeachment” without a hearing or investigation, even though a trial would likely not take place immediately. Even a one-day hearing would have allowed evidence to be discussed and a formal invitation to respond.
Second, the impeachment article is poorly drafted and poorly conceived based on allegations that Trump’s January 6 speech to supporters was “incitement to rebellion”. His speech may have given incontestable reasons; I condemned it when it existed and opposed its challenge to the electoral vote from the start. But as I already wrote, it would have been far better to reprimand him for this in a bipartisan, bicameral resolution.
While the impeachment may be non-criminal, Trump’s speech alone was not criminal incitement. Without direct evidence of intent, a criminal complaint would likely break down in an actual trial or on appeal for the first amendment. Trump urged his supporters to “make your voices heard in a peaceful and patriotic way”. He told them to go to the Capitol “to cheer on our brave senators and congressmen”, “fight like hell” to challenge the elections and remind unsupportive Republicans that their actions would not be forgotten. It was a reckless speech – but in court it would be a protected speech.
Despite the strength of such defenses, the president must first decide whether he wants to stand trial at all. He can rightly argue that a private individual cannot be charged and that the Senate cannot remove a person who has already left office.
Article I, Section 4 of the Constitution states that the sole purpose of impeachment is whether “to remove the President, Vice-President, and all civil servants of the United States from office.” While the Senate can later add a disqualification from the office of the Federal Office, this is only the case after the decision on the recall – because it is about the punishment, not the purpose of the procedure.
The constitution refers to a present status of the “President”. This status is key to other provisions that confer official powers and privileges that do not persist after leaving office. No one would argue that Trump could continue to exercise these powers once President-elect Biden is sworn in. However, a Senate trial would insist that Trump, despite having no continuing powers, continue to be punished with office-bound penalties. In addition, the stated purpose of the impeachment process is whether a president should be “removed”. Thus, the only incumbent president, Joe Biden, would be the only person who is constitutionally subject to impeachment.
This issue has been debated since the first impeachment in 1797 when Tennessee Senator William Blount was faced with charges of conspiracy to help Britain conquer what is now Louisiana. Blount was expelled from the Senate before being charged and insisted that he should not be tried and refused to appear. The Senate apparently agreed and dismissed the case – just 10 years after the constitution was ratified, with most of the Framers still alive and some serving in Congress. (In fact, Blount was one of his signatories.)
The second case didn’t go much better. In 1876, former Secretary of War William Belknap was tried, although he resigned before being charged. Almost half of the senators agreed that they had no jurisdiction, and Belknap was later acquitted, in part because of doubts about the legitimacy of the process.
The absence of a defendant or defense counsel may not be the only strange element in the process. For example, it is unclear whether Chief Justice John Roberts would be asked to chair. After all, the Constitution provides that when “the President of the United States is tried, the Chief Justice will preside” – but the President will be Biden, not Trump.
Failure to defend yourself is not an admission of guilt. The Senate has a duty to decide whether a valid impeachment procedure should take place and whether the constitutional standard has been met. If the Senate does not reject the case in a threshold vote, Trump can treat the process as an extra-constitutional act as it no longer needs to be removed. If the Senate were convicted, it would have the option to challenge disqualification from future federal offices. He could prevail, and the Senate would have set a precedent against itself: the first judicial overturning of an impeachment sentence in history.
The courts have long maintained that impeachments are left to Congress. However, this is different. The issue here is whether a private individual can be subjected to a procedure that is expressly obliged to remove public officials. Impeachments are given the status of public official, while charges are given the status of a person. If prosecutors believe Trump instigated the uprising, they should blame him. However, the Senate must decide whether to hold a trial based on legal fiction: a vote to remove someone who is no longer in office.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and has served as the last senior attorney pending impeachment in the Senate. He testified as an expert on the impeachment negotiations of Bill Clinton and Donald Trump. Follow him on Twitter @JonathanTurley.
This column has been updated.