The Legal Impact: Trump's Second Impeachment


Thursday, January 28, 2021

John Greabe

Professor John Greabe breaks down the latest article of impeachment brought against President Trump, actions that can prevent him from running for president in 2024, and the precedent for impeachment after someone is out of office. Produced and Hosted by A. J. Kierstead

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Legal topics include impeachment, constitution, congress, president, insurrection, protest, riot 

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A. J. Kierstead:

Professor John Greabe dives into the articles of impeachment against President Trump that have been brought to the United States Senate to decide. This is the Legal Impact, the weekly podcast presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD Graduate programs and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed or solely the opinion or the facts of your host and do not constitute legal advice or necessarily represent the official views of the university of New Hampshire. So, John, let's start off with the articles of impeachment. What did the US house of representatives give to the Senate impeaching President Donald Trump?

John Greabe:

Well, in this situation, there's just a single article of impeachment and he has been impeached for inciting insurrection and the most immediate occasion for the charge is the speech he gave on January 6th. It'd be just before the rioters went to the Capitol and breached the Capitol. But the article of impeachment does go beyond that. And it also makes general reference to his course of behavior since the election last November, in terms of, without substantiation, alleging fraud, there's specific mention made in the article of the phone call that he made on January 2nd to the Georgia secretary of state, the tape of which has been publicly released, where he is seemingly trying to strong arm the secretary of state of Georgia to come up with more votes for him and to overturn the results of the election in Georgia. It's focused on his speech, inciting the crowd to go to the Capitol, but it more generally also describes a pattern of conduct leading up to that.

A. J. Kierstead:

In regarding his speech on that day, I mean, the Republicans are going to have a pretty strong case that he specifically said this was supposed to be a peaceful protest I'm assuming.

John Greabe:

Yeah. I mean, first of all, incitement is an inherently nebulous concept, right? I mean we sort of draw from first amendment law because first amendment protects most speech. There is an exception in first amendment law for incitement to lawless action, but the standard that one must meet in order to secure a conviction for that is really pretty heightened and pretty strict. And that's because we don't want mere political speech, even distasteful political speech to suddenly become the subject of criminal prosecutions. Now that said, this is not a criminal prosecution. This is a political process. And so there's no requirement that what the president's speech did on January 6th, there's no requirement that it meet the standard for criminal conduct in order for it to be impeachable.

John Greabe:

And clearly the house of representatives, a majority of the house of representatives has concluded that it does constitute impeachable conduct. Nonetheless, naturally the conversation is going to focus on the underlying legal standard for bringing prosecutions for incitement. And as you say there is exculpatory language, if you will, in there where the president did on that day, he did make reference to hope that things would be peaceful. You have to look at the totality of the words and the totality of the circumstances, I suppose, in evaluating that.

A. J. Kierstead:

Do you think this was brought up to the level of impeachment primarily because this was at the time of the electoral college being approved by the Congress?

John Greabe:

Yeah. I mean, January 6th is a significant date. It's the date where Congress recognizes the president elect. I think the reason why he was impeached is that under the totality of circumstances and as one looks at the way in which he behaved from election night through January 6th, constantly calling into question the legitimacy of the election and the fairness of the election and claiming that he won and that he won in a landslide. It's hard to say that this was anything other than an attempt to hold onto power by illegitimate means. And it's hard to conceive of an offense, a political offense that cuts to the heart of our constitutional order. That could be more serious than this sort of an allegation.

A. J. Kierstead:

What are the defenses you foresee the Trump administration pushing?

John Greabe:

Well, I think the first one we've already seen in action, right? Which is an argument that because he's no longer the president, he cannot be convicted and removed from office, that he's a private citizen, a construction of the constitution that would limit the impeachment and removal power to people who presently hold office. Now there's a disagreement among scholars of the issue about whether or not in fact it is constitutionally appropriate to proceed with a trial in the Senate once somebody has left office. There is precedent from the 19th century where there was a Senate trial held for a cabinet official who had resigned. That precedent arguably points in both directions. On the one hand, a majority of the Senate that in that instance found that there was the power to proceed, but then he was acquitted. And some of the people who voted to acquit did so on the basis of a stated belief that they didn't think the Senate had the power to acquit.

John Greabe:

Ultimately this is not something that the courts are likely to take up. It's something that the Senate itself will decide and the courts will defer to it. But at present, it looks as though Republicans are sort of rallying to the argument that there's essentially a lack of jurisdiction here because the president is no longer in office. So I certainly imagine that point being made again and again and again, through the process. In terms of the merits, I think what you've already asked about will be highlighted by any defense, which is that it just didn't rise to the level of being incitement. We'll see.

John Greabe:

But I mean, I would expect also, I mean, based on who the president apparently is retained to present his defense, I expect that there will be an argument made that there was indeed still widespread fraud and that the president's speech was based on truth, not withstanding the fact that 60 some lawsuits were filed making this claim and all of them were dismissed. And there seems to be no evidence at all of the sort of systemic fraud that would call into question the legitimacy of the election. I think just as an observer of Donald Trump, I can't imagine him stopping with that line of argument, given how fully invested he's been in it since the election.

A. J. Kierstead:

Basically with the polarization, taking the assumption that the polarization basically going to continue as is the Senate's pretty closely split the election. Once again, there's another election two years and things will continue. If the impeachment is proved through the Senate, do you think it will set a precedent for future presidents that it could be problematic when they leave office?

John Greabe:

Well, I mean, honestly reading the tea leaves right now, it does not look like a conviction is in the cards, just based on that vote that the Senate took. And I should actually mention too, I haven't mentioned yet that the argument in favor of being able to continue with impeachment proceedings after somebody's left office, is the fact that there is an additional power to disqualify somebody who's been impeached and convicted from running for office again.

John Greabe:

And the argument is that that power could only be effectuated in a situation where there's a resignation or somebody commits impeachable conduct at the end of a term in circumstances where the Senate trial follows the point in time where the person leaves office. But in terms of precedent, everything about this last few months is unprecedented. And I think most of us hope that this will be an aberration historically, but I'm sort of past the point of feeling confident in any predictions about what will or will not happen anymore. And I smile as I say that, but I don't feel joy in saying that.

A. J. Kierstead:

You jumped ahead into my next question. I mean, Trump is at this point able to run for the office of president again in 2024. He only served one term and he's very politically active still with some emails that have gone out to supporters and rumors of him even wanting to start his own political party. So the messiness is not going to go away anytime soon, but I mean, are there other ways, aside from impeachment that Congress can prevent him from running for office again on the federal end of things?

John Greabe:

Well, the most straightforward way would be if he were convicted in the Senate, but conviction in the Senate takes the vote of two thirds of the senators. And again, as we sit here this morning at least, it looks as if there is not going to be a conviction in the Senate. If we take the procedural vote from earlier this week on the motion to dismiss as sort of a prelude to what the senators are going to do. If he's convicted though, then it takes simply a majority vote of the Senate to disable him from running for office again. There is another constitutional provision also that could conceivably come into play and that's section three of the 14th amendment, which was previously a relatively obscure provision of the 14th amendment. That provision by its terms, mandatorily, disables anyone who is engaged in insurrection against the United States from holding office.

John Greabe:

Again, the question there is how to operationalize section three. Does Congress pass a law saying that Donald J. Trump engaged in insurrection? And is therefore barred from further holding office? Well, there would be a constitutional defense to any such law, which is that that would be a bill of attainder. And I'm not saying it would be a good constitutional defense, but it would be a legitimate issue because Congress is not supposed to pass laws that target individuals, it's supposed to enact laws that are generally applicable. And so the argument is that the safer way to go under section three of the 14th amendment would be to enact a law, authorizing federal prosecutors to prosecute or to bring charges, seeking to disabled people who engaged in insurrection. Obviously that would be a pretty long and cumbersome process, but that is another potential route that would be available, but that would likely unfold over a period of time. Meanwhile, if President Trump decides that he wants to run again, I would expect that that would be an announcement that he would make sooner rather than later.

A. J. Kierstead:

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