The Senate impeachment trial for Donald Trump, which might start shortly after the inauguration of his successor Joe Biden, is likely to establish the tone of the partisan atmosphere in Washington for the next two years. Democrats accuse Trump of deliberately inciting his supporters to invade and vandalize the Capitol building, in a desperate effort to overturn the results of the November election. Recordings of his remarks to his supporters at the “Save America” rally show that Trump instructed them to march to the Capitol “to peacefully and patriotically make your voices be heard,” with no mention of overthrowing the government.
Democrats have studiously ignored the fact that Trump’s language does not even come close to meeting the definition of “incitement” under criminal law, let alone the incendiary charge of incitement lodged against a sitting president of the United States. But Maryland Congressman Jamie Raskin, chosen by House Democrat to manage the prosecution during the Senate trial, declared, “We’re going to be able to tell the story of this attack on America and all of the events that led up to it. This president set out to dismantle and overturn the election results from the 2020 presidential election. He was perfectly clear about that.”
Furthermore, Raskin made clear that the fact that Trump’s alleged “insurrection” failed is not sufficient. He declared Congress that cannot afford to establish a precedent where they “let bygones be bygones” just because Trump’s term of office had expired.
DEMOCRATS DETERMINED TO TAKE REVENGE ON TRUMP
The determination by Democrats to exact their revenge on Trump even after he has left office, with the goal of convicting him in the Senate and banning him from running for president again, is likely to undermine Biden’s goal of reuniting the badly divided country to build a bipartisan consensus behind his legislative agenda. Ron Klain, Biden’s White House chief of staff, said he hopes Senate leaders, on a bipartisan basis, “find a way to move forward on all of their responsibilities. This impeachment trial is one of them, but getting people into the government and getting action on coronavirus is another one of those responsibilities.”
Congressional Democrats share Biden’s desire to get his presidency off to a fast start. House Speaker Nancy Pelosi is still smarting from Republican criticism that she had blocked, for political reasons, a Covid-19 relief package approved by the Trump administration before the November election that was even larger than the $1.9 trillion package which Biden proposed last week. It includes $350 billion in direct aid to state and local governments, which the Republicans had blocked from the $900 billion stimulus bill that Congress passed a month after the election.
Biden’s measure also would provide an additional $1400 per person for most American families, in addition to the $600 per person payments from the earlier bill, and a supplementary federal unemployment benefit of $400 per week.
A LOST OPPORTUNITY TO DIVIDE THE REPUBLICANS
The angry Democrat push for impeachment may have cost them the opportunity to appeal to Republicans who were also turned off by Trump’s efforts to convince his followers that it was still possible to overturn certified election results after his court appeals had been denied.
Most Republicans had been sympathetic to Trump’s initial refusal to concede defeat and agreed that he did have sufficient reason to suspect a large number of vote count irregularities. They rejected the Democrat and mainstream media narratives claiming there was never any basis for such suspicions. But they felt that Trump went too far in pressing his claims, putting his own ego and personal ambitions above the best interests of the 74 million voters who believe in the movement that he started — and above the best interests of the nation.
GRAHAM’S CHANGE OF HEART
Senator Lindsey Graham was one of Trump’s key Republican allies who had temporarily considered abandoning his cause in the immediate aftermath of the January 6 assault on the Capitol. In the late-night session convened after the building had been cleared of the invaders, Graham took to the Senate floor to declare, “Trump and I, we had [some] journey. I hate it being this way… I hate it. From my point of view, he’s been a consequential president, but today all I can say is count me out. Enough is enough. I tried to be helpful.”
Graham joined with Senate Majority Leader Mitch McConnell in declaring his support for Vice President Mike Pence’s decision that the US Constitution did not give him the right, acting as President of the Senate, to reject the state-certified results of the election and overturn the decision of the Electoral College which had made Joe Biden “the legitimate President of the United States.”
However, once Graham realized how the Democrats were trying to exploit the Capitol invasion to silence all political dissent against their policies and punish Republicans who could not be cowed into submission, he reconsidered his position and published a letter which he had written to Chuck Schumer, leader of Democrats in the Senate, asking him to hold a vote to dismiss the article of impeachment of President Trump passed by the House, calling the effort an “unconstitutional” act of “vengeance” which will hinder the process of “national healing.”
In his letter, Graham argued that the Senate had already fulfilled its duty to defend free elections when “virtually all of us” (with the exception of seven Republicans) rejected Trump’s calls to overturn the 2020 election results during Congress’s certification of Biden’s victory. He predicted that a Senate impeachment trial would only fuel further resentment among Trump’s supporters in an already bitterly divided country.
Graham warned Schumer against the intention of “your first act as majority leader, rather than begin the national healing that the country so desperately yearns for, you seek vengeance and political retaliation instead. While the vice president and Senate Republicans rejected unconstitutional actions, you seek to force upon the Senate what would itself be but one more unconstitutional action in this disgraceful saga — the impeachment trial of a former president.”
Speaking out on other occasions since the Capitol invasion, Graham described Trump’s impeachment by the House as a “bad, rushed, emotional move” and asked each of his fellow Senate Republicans, “Please do not justify and legitimize what the House did.”
Several other Republican senators, in addition to Graham, criticized Trump’s refusal to accept the decisions by the courts rejecting his challenges to the November vote counts, as well as his remarks on January 6 as irresponsible. Alaska maverick Republican Senator Lisa Murkowski and Pennsylvania’s Pat Toomey said that Trump should resign. In addition, Murkowski said the House responded “appropriately” by passing the article of impeachment against Trump and that she intends to consider the arguments in the Senate trial before deciding on her vote.
MCCONNELL STAYING NEUTRAL
According to a report by Business Insider, Mitch McConnell told his fellow Senate Republicans that he will not attempt to influence them for or against convicting Trump in the impeachment trial, calling that decision a “vote of conscience,” and he is also reportedly undecided about his own vote on the question as well. On Tuesday he said about the Capitol riot while speaking in the Senate, “The mob was fed lies. They were provoked by the President and other powerful people.”
But as Democrat rhetoric condemns not just Trump, but also every Republican who ever supported the “big lie” that his election victory had been stolen from him, it seems increasingly unlikely they will be able to persuade the minimum of 17 out of 50 Senate Republicans they will need to join them in creating the 2/3 majority of senators needed to impeach Trump, which they must do before voting separately to ban him from seeking elected office in future. When the House voted to pass the article of impeachment against Trump last week, by 232-197, only 10 of its 212 Republicans joined Democrats in calling for his removal.
Many political analysts have warned the Democrats that their single-minded obsession with punishing Donald Trump would cripple the crucial first 100 days of the Biden administration, slowing the confirmation of his cabinet appointments and preventing votes and debates on the legislative measures he has promised to pass, starting with his $1.9 trillion relief package. His proposal is heavily laden with big spending items which have long been high on the liberal wish-list, and to which many Senate Republicans are sure to object.
It is also surprisingly short on measures to stimulate job creation, which is desperately needed due to millions of jobs lost during the pandemic. Job creation is also likely to suffer from Biden’s campaign pledge to cancel the 2017 Trump tax cuts on American businesses which powered a rapid expansion of job creation. Specifically, Biden promised to increase taxes on all those with income above $400,000 per year, raising taxes on capital gains to the same rate as ordinary income for people with income above $1 million, and raising the corporate tax rate from 21 percent to 28 percent.
BIDEN’S AMBITIOUS AGENDA
Biden had a long list of actions he promised to implement via executive order during the first 10 days of his presidency. These include “green” environmental measures, such as signing on to the Paris accords and canceling the permits for the Keystone XL pipeline, the cancelation of Trump’s travel ban against visitors from countries rife with Islamic terrorism, and an immediate halt to the construction of Trump’s anti-infiltration wall along the Mexican border.
The problem with this approach, as President Obama discovered after Democrats lost control of Congress, is that executive orders can be overturned with the stroke of a pen by the next president, or a court order. The only way a president can implement permanent policy change is by passing legislation giving the policy the force of law. Trump was able to do that during his first two years in office and continued to reshape the political profile of the federal judiciary by maintaining Republican control of the Senate throughout his presidency.
While Democrats are now technically in control of both chambers of Congress, the 50-50 Senate and the narrow Democrat majority in the House means it will be difficult for Biden to pass legislation without accommodating the sensibilities of more moderate Democrats and at least a few Republicans. The announcement by West Virginia moderate Democrat senator Joe Manchin that he will block liberal proposals to do away with the Senate filibuster rule, pack the Supreme Court, and other radical measures in Biden’s legislative agenda, means that Vice President Kamala Harris is likely to have few opportunities to exercise her Senate 50-50 tie-breaking vote, unless Manchin changes his mind.
Under the special rules of the budget reconciliation process, Senate Democrats will only be able to pass the basic financial bills necessary to keep the government running with Harris’ tie-breaking vote. To get much of the rest of Biden’s agenda through the Senate over the next two years, Chuck Schumer will need to reach a working arrangement with Mitch McConnell. That promises to be difficult, given the prickly relationship between the two over the past four years, and the increased animosity between most Senate Republicans and Democrats — unless Biden is willing to accept substantial compromises with Republicans on his proposals.
Biden has promised to ask Congress to grant legal status to the estimated 11 million illegal aliens in the country as part of an immigration reform bill. It would include an eight-year path to citizenship and a fast track for the so-called “dreamers” who came to this country as children and who have been shielded from deportation by President Obama’s Deferred Action for Childhood Arrivals (DACA) program, which President Trump had tried unsuccessfully to terminate.
Without the support of at least 10 Republican senators, passage of such legislation would be impossible, as would be Biden’s proposals for criminal justice reform and climate change. But Biden’s immigration plan is diametrically opposed to Trump’s, whose 2016 campaign rested in large part on his promise to protect America’s borders and curb illegal immigration.
IS BIDEN’S PASSIVITY A SIGN OF WEAKNESS?
If Pelosi and the Democrats choose to pursue the Senate conviction of Donald Trump, it will make it much harder for Biden to realize his declared intention to reach across the political aisle to heal the divisions by reaching a consensus on chronic problems facing this country, whose solutions have been blocked for years by partisan politics. Biden’s refusal to even try to tone down Pelosi’s angry vendetta against Trump might be a sign he is not in charge of his own party, and raises new questions about whether he will be able and willing to lead this country.
While the New York Times praised Biden for staying “above the fray” and maintaining “a studied cool,” others interpret his passivity and vague policy pronouncements as signs of his submission to the more radical voices in his party, and a dangerous indication of his likely weakness as president over the next four years.
Biden did not object to DC being turned into a military occupied zone for his own inauguration ceremony, in which the public was not allowed to participate, and which was totally overshadowed by the Trump impeachment brouhaha generated by his fellow Democrats and their friends in the mainstream media.
Unfortunately, given Joe Biden’s decision to spend most of his presidential campaign hunkered down out of sight in his basement, and avoiding any serious interviews with the media, it was not surprising to have seen him follow that same pattern during his transition, and to fear that his presidency will be similarly passive and reactive.
After the inauguration, Biden’s first major test as president will be keeping his campaign promises to expedite the vaccination program nationwide, and he will likely be judged by the voters accordingly. We will soon see how effective Biden can be in leading the country in the battle against this plague.
Democrats most likely will embarrass themselves if they decide to immediately start a Trump impeachment, because if they do, Senate Republicans are unlikely to provide them with the additional 17 votes they need to convict him. If Senate Democrats can’t convict Trump, they probably can’t achieve their goal of banning him from running for president again. In that case, Trump would be able to boast to his supporters that he has once again defeated the efforts of his political enemies to destroy him by pressing false accusations, beginning with the Russia collusion hoax which the Democrats created to destroy his presidential candidacy and which Hillary Clinton and others continue to push.
SENATE’S JURISDICTION OVER BIDEN IS QUESTIONABLE
It is not even clear whether the Senate has the authority to conduct an impeachment trial after Trump has left office. The Constitution does not specifically address that point, and historical precedents on that matter are mixed.
Republican Senator Tom Cotton of Arkansas has joined with Graham in challenging the constitutionality of a Senate trial of Trump after he has left office. “The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens,” Cotton said in a statement. “The Constitution presupposes an office from which an impeached officeholder can be removed.”
Many Democrats are also demanding the removal from office of Ted Cruz and Josh Hawley, who spoke out in support of Trump’s challenges to the original vote counts, as well as the 138 House Republicans who voted against their certification. Most Republicans see this as a direct attack on the democratic right to dissent in this country and on the freedom of political speech under the First Amendment to the Constitution, as affirmed many times by the Supreme Court.
Even Democrat legal experts agree that Trump’s words and actions on January 6 fell well short of insurrection or treason, according to the federal criminal code’s definition of those terms. Trump was not even present when the mob stormed the Capitol building after leaving the rally just outside the White House, about 20 blocks away, where the president had spoken.
Longtime Trump defender Conrad Black argues that the content of Trump’s speech to the estimated crowd of 300,000 gathered that day at the Ellipse was virtually identical to the speeches he had been giving to his supporters ever since the morning after Election Day, when his early lead in the Electoral College vote count began to disappear. According to Black, everything changed “when a small fragment of that crowd assaulted the Capitol, [and] Democrats saw the opportunity to hang it around the president’s neck” and impugn the patriotism and honesty of anyone who dared to agree with Trump by raising the many reasonable doubts surrounding Biden’s victory and by declaring those doubts to be a monstrous “big lie.”
Conrad claims that Trump’s words calling for “peaceful protest” accurately reflected the beliefs of many of the “74 million Americans who voted for him [and] felt the election had been stolen, and that both the Congress and the Supreme Court were completely indifferent to their grievances.” He argues that, “the Democratic Party and national and social media (now coextensive) used the misrepresentation of Trump’s remarks as grounds for the suppression of freedom of expression on the subject of the recent election,” employing their tactics of censorship and intimidation without mercy against all who dared to express a dissenting opinion.
‘TRUMP SAID NOTHING ILLEGAL’ BEFORE THE INVASION
Conrad insists that “Trump said nothing illegal” to the crowd, though he concedes that Trump “blundered badly in publicly demanding that the loyal Vice President Mike Pence, unto himself, reject the Senate confirmation of the choice of Electoral College members,” calling it “a mad idea.”
Former George W. Bush press secretary Ari Fleischer offers a more colorful description of Trump’s mixed personality and record as president, calling him “a political wrecking ball with. . . some remarkable accomplishments on his watch.” Fleischer makes the argument that some of Trump’s tweets and his more inflammatory statements, including those which he made to the January 6 rally, have “marred his own accomplishments” as well as doing “tremendous damage to a worthy cause, especially for over 74 million peaceful Americans who voted for Trump.”
He says that the source of Trump’s voter appeal “is and was that he is an anti-Washington outsider. A massive number of Americans don’t trust politicians and hold Washington in low regard. Many yearn for someone authentic, who bluntly speaks his or her mind.
“Add to the mix a Congress that barely functions, problems that don’t get solved, and experts, including a biased media, that accepted the false Trump-Russia collusion charges made by Democrats. It’s no wonder the public was open to an outsider who threatened to disrupt the government.”
TRUMP’S BIGGEST PROBLEM IS HIMSELF
Many Republicans would agree with Fleischer’s assessment that, “Trump’s biggest problem was and is himself. He regularly went too far, crossed too many lines, and offended too many people. If he had toned himself down a notch or three, he could have kept many of the voters who liked his tough, blunt approach without losing as many women and college graduates, especially in the suburbs, who were turned off by his tweets and his demeaning behavior.
“It’s one thing to fight when necessary, but it’s another to fight everyone, including your allies, almost all the time, in ways that go too far, culminating in a takeover of the Capitol by pro-Trump forces.”
Fleischer’s conclusion is that Trump’s current political plight is due to his own deep-seated character traits. “He is an alpha-male who often pushes conspiracy theories and stays focused on his own greatness. He lost an election and never accepted the truth about it. His personality dominates his accomplishments. He thinks that’s why he won; he doesn’t understand that’s why he lost.”
But despite Trump’s loss in November, Fleischer contends that he has left the future of the Republican Party far brighter than he found it four years ago. Thanks to Trump, Fleischer says, “the GOP should be America’s blue-collar, populist, outsider party, dedicated to individual and religious freedom. It should be the party that stands up to China. And it should do all this without saying or doing crazy things that scare college-educated voters, especially women.”
Fleischer predicts that, “a steady outsider will emerge who is Trump-like in policy, without being Donald Trump. That candidate can take back the White House and show Republicans how to take back Congress.”
WAS IT A PLOT OR AN INSURRECTION?
Democrat justification for the impeachment effort is undermined by reports of growing evidence found by the FBI that the invasion had been organized in advance by right-wing extremists who infiltrated the Trump’s “Save America” rally and then launched an assault on the Capitol building. Democrats claim that Trump deliberately incited his followers to launch a spontaneous coup in an effort to deny the presidency to Joe Biden, his duly elected successor. But if the assault was, in fact, a preplanned act of right wing “domestic terrorism,” as many Democrats and their supporters in the media now claim, where is the evidence that Trump had been aware of or had approved of their plans? The two explanations are mutually exclusive.
According to a CNN report, surveillance video of the weapons and tactics employed during the Capitol invasion suggests to the FBI a level of planning inconsistent with the narrative that it was a protest that spiraled out of control due to Trump’s fiery speech at the rally on the Ellipse, outside the White House earlier that day.
The FBI is reportedly examining evidence that some of the right-wing extremists left the rally early to retrieve weapons and other items they had brought with them to Washington to be used in the assault on the Capitol. Federal investigators and prosecutors are also examining the command and control planning that went into the attack, including travel and communications records, to build a federal counterterrorism case against the right-wing groups behind it.
Some Democrats publicly alleged that Republican members of Congress were in on the plot, and gave the right-wing conspirators “reconnaissance” tours of the Capitol prior to the rally. Some have alleged that the invasion was an “inside job,” coordinated with the public officials responsible for the security at the Capitol. They argue it is the only logical explanation for the lack of an adequate police presence to control the mob, after those security officials had been notified days in advance by the FBI and others that plans for such an attack had been detected.
The officer in charge of the Capitol Police, Stephen Sund, has resigned in response to the wave of criticism for his failure to protect the building that day. However, Sund insists that his calls days in advance of the riot for outside help, including the mobilization of National Guard troops to augment his police, had been rejected by the Sergeant at Arms for the House, Paul Irving, and for the Senate, Michael Stenger, due to their concerns about the political message that would be sent by the “optics” of such a troop deployment. Even after the Capitol had been breached by the mob, a senior Pentagon official refused to forward Sund’s call to the Secretary of the Army, Ryan McCarthy, asking him to send help in the form of additional “boots on the ground.”
THE INVESTIGATION HAS HARDLY BEGUN
The FBI has said that the full, in-depth investigation of what actually took place that day when the Capitol building was invaded has just begun. The agency is still sifting through the huge amount of evidence from security cameras, postings on social media and the interrogation of the suspects and witnesses to the days’ events in an effort to arrest and bring criminal charges against all those involved.
Yet the House moved immediately to place the blame primarily on President Trump by passing an article of impeachment without waiting for any of the evidence to be examined, or giving Trump and his supporters an opportunity to offer a defense of his actions. At least when Trump was impeached by the House in 2019 for what he said to the president of Ukraine in a phone call on July 25 of that year, the House Judiciary Committee held public hearings at which testimony was submitted suggesting — but not proving — Trump’s guilt, and his defenders were given some opportunity to cross-examine the accusing witnesses.
In this case, the rush to judgement by the House did not provide for even the semblance of due process before impeaching him for allegedly committing an act of treason as well as sedition as defined for the 14th Amendment to the Constitution, which has never been used against a sitting president before. If the FBI investigation does reveal that the invasion of the Capitol was the result of an organized conspiracy by right-wing domestic terrorists to overthrow the government, the single count of impeachment filed by the House against Trump will be revealed as an egregious miscarriage of justice and act of reckless political malpractice by Democrats.
The question of whether or not the Senate has the constitutional authority to conduct an impeachment trial of a president no longer in office remains in dispute among legal scholars. John Roberts, the Chief Justice of the Supreme Court, would preside over the Senate impeachment trial for Trump according to Article I Section 3 of the Constitution. He would have to decide whether the Senate has jurisdiction even before determining whether the charges in the House article of impeachment meet the requirements for guilt set forth in Article II Section 4, including “treason, bribery, or other high crimes and misdemeanors.”
TRUMP’S SPEECH WAS PROTECTED BY THE FIRST AMENDMENT
Former Harvard law professor Alan Dershowitz admits that he found Trump’s speech that day to be “deeply upsetting” on a personal level. Nevertheless, he insists “it was fully protected by the First Amendment. Nothing the president said constituted unprotected ‘incitement,’ as narrowly defined by the Supreme Court over nearly a century of decisions,” Dershowitz concluded. “[Trump’s] volatile words plainly fell on the side of political ‘advocacy,’ which is protected speech.”
Dershowitz cites the language in the unanimous Supreme Court decision, Brandenberg v. Ohio, which states that even advocacy for the use of force falls under constitutional protection, unless it is specifically “directed to inciting or producing imminent lawless action.” He concludes that the speech Trump delivered was protected under the First Amendment, comes nowhere near meeting the Supreme Court’s definition of “incitement,” and is therefore highly questionable as a basis for Trump’s impeachment. In fact, Dershowitz argues that the article of impeachment which the House passed against Trump violates the clear intent of the First Amendment when it states that ““Congress shall make no law … abridging the freedom of speech.”
Dershowitz further explains that “impeaching President Trump on grounds that violate both the First Amendment and the impeachment clause would do more serious and enduring harm to our Constitution than the unlawful rioters did when they temporarily took over the Capitol building. These rioters did grave harm to the rule of law, but at the end of a long and difficult day, the rule of law prevailed. The Capitol was secured and Congress continued with its business, voting down what the rioters were demanding. Many of those who broke the law have been arrested and will be prosecuted and convicted for serious crimes, including possibly homicide.
“But now, the Democratic leaders of Congress and some Republicans are threatening to take political steps that endanger the line carefully drawn by First Amendment jurisprudence between those who advocate unlawful conduct and those who commit it.”
WHY FREEDOM OF SPEECH IS SO ESSENTIAL
Dershowitz quotes Thomas Jefferson, who wrote 25 years after the signing of the Declaration of Independence that even if political speech openly advocates for illegal or despicable conduct, it still must be protected. Jefferson believed that the “safer corrective” was for the law to stand “ready to punish the first criminal act produced by the false reasoning” of the speaker.
The principle is perhaps best summed up by a quote attributed to Voltaire, the writer and philosopher whose impassioned defense of civil liberties helped inspire the French Revolution: “I disapprove of what you say, but I will defend to the death your right to say it.”
The Founding Fathers believed that the defense of freedom of speech, even unpopular speech of a provocative nature, was absolutely essential to the freedom of the American people. As a young man, decades before the Declaration of Independence, Benjamin Franklin wrote, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” Similarly, George Washington warned, “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
In 1950, President Harry S. Truman wrote, “Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”
THE ACLU AND THE NAZI MARCH IN SKOKIE
The landmark legal test of the right to free speech in this country came in 1978, when the American Civil Liberties Union (ACLU) defended the right of a neo-Nazi group to stage a march through the Chicago suburb of Skokie, where a large number of Jews, including many Holocaust survivors, would be outraged and justifiably feel threatened by the demonstration.
The Nazis claimed the right of free speech, while members of the Skokie Jewish community claimed the right to live without intimidation. Meanwhile, the town, arguing that the march would likely spark violence, obtained a court injunction against the Nazi marchers.
When the ACLU challenged the injunction, its head lawyer, David Goldberger, found himself in the difficult position of being a Jew defending the free speech rights of Nazis against his fellow Jews. The ACLU won its case in court, but at a high price to the organization — the loss of 30,000 of its paid members who resigned in protest. Ironically, in the end, the Nazis never did march through Skokie, agreeing in the end to stage their rally without incident at Federal Plaza in downtown Chicago.
Unfortunately, the ACLU has been taken over since that time by progressives who seem all too willing to sacrifice the once sacrosanct principle of freedom of speech in favor of their race-based political agenda. When President Trump’s voice was silenced on social media and he was punished with impeachment by his political enemies in Congress for questioning the fairness of the November election, the ACLU ignored the freedom of speech aspects of those actions.
Instead, the ACLU accuse Capitol Police of racism for failing to crack down as forcefully against the pro-Trump protesters who invaded the building as they did during the violent protests opposite the White House last summer by Black Lives Matter.
“We shudder to think how police departments would have responded had black and brown people stormed a government building to protest police brutality,” the ACLU wrote in a tweet on the day of the invasion of the Capitol building.
ATTACKS ON THE FIRST AMENDMENT
Dershowitz writes that “the major criterion for [Trump’s] impeachment — ‘incitement to sedition’ — has been misused throughout our history in efforts to suppress the advocacy of controversial speakers, including union leaders, civil rights activists, suffragettes and other protesters and dissenters. It is an open-ended concept that can be expanded to cover many constitutionally protected protests. That is why the Supreme Court has repeatedly rejected efforts to circumvent the First Amendment by accusing advocates of ‘incitement,’ ‘sedition,’ ‘insurrection,’ ‘treason’ and other loaded but vague phrases and words.”
Dershowitz warns Democrats that “weaponizing the Constitution as a political sword has consequences. Today it is being wielded against a Republican president. Tomorrow it may be wielded against a Democratic president.” Dershowitz fears that “since the Republicans improperly impeached President Bill Clinton in 1998,” it has become an accepted tool for political parties to use routinely in efforts to oust sitting presidents on the slightest pretext.
IMPEACHING PEOPLE WHO ARE NO LONGER IN OFFICE
Both Dershowitz and George Washington University professor Jonathan Turley have expressed doubts about whether the Senate has the power to impeach someone who no longer holds federal office, citing the only Senate impeachment trial in which that question ever arose.
In 1876, then-secretary of war William Belknap was accused of accepting bribes in return for giving businessmen contracts to run profitable trading posts at US Army forts in the Indian territories. Belknap confessed his guilt to President Ulysses S. Grant and submitted his written resignation as secretary of war. But the House committee which had been investigating the allegations drew up articles of impeachment against Belknap anyway, which were passed by the House and sent to the Senate for trial.
Before the Senate impeachment trial could begin, the senators had to decide whether they had jurisdiction over Belknap after his resignation. After several weeks of debate, the Senate voted by 37-29 that it did have jurisdiction. The evidence then presented by the 40 witnesses against Belknap was overwhelming, convincing all the senators that Belknap was, in fact, guilty of taking the bribes. But 25 of those senators voted to acquit him anyway, because they still believed that the Senate lacked the jurisdiction to try him.
So even though the final Senate vote was 35-25 to convict Belknap, he was acquitted because it fell short of the constitutionally required two-thirds majority. As a result, the decision by the senators in 1876 that they did have jurisdiction to try Belknap after he left office was never reviewed by the Supreme Court, limiting its value to Senate Democrats as a legal precedent to justify their desire to place now-private citizen Trump on trial.
Dershowitz argues that the senators who voted that they did not have jurisdiction to try Belknap were right. To try him after he became a private citizen clearly violated Article I, Section 9, Paragraph 3, which specifically prohibits Congress to conduct a criminal trial of a private citizen, which the Constitution calls a “Bill of Attainder.” The same principle would apply to a Senate trial of ex-president Trump.
Dershowitz also points out that making any private citizen subject to an impeachment trial by the party in power would have “horrendous” consequences on the American political system. It would enable that party to disqualify in advance any opponent with the potential to win the next election. That is clearly the fear that has motivated many Democrats to insist upon holding an impeachment trial of Trump while political feeling is still running high against him across the country because of the invasion of the Capitol.
IMPEACHMENT AND THE LOUISIANA PURCHASE
On the other side of the argument, Turley notes the case of William Blount, a senator and land speculator from Tennessee, who was impeached in 1797 by the House when it was revealed that he had conspired to have Spain sell the territory of Louisiana to Great Britain instead of France.
Blount’s plot called for American territorial militias, supported by the British fleet, to attack the towns of New Orleans and Pensacola, then still under Spanish rule. However, Blount was expelled from the Senate by his fellow members and returned to Tennessee before his formal Senate impeachment trial began. When the Senate summoned Blount to return to stand trial, he refused, claiming that he was no longer subject to its jurisdiction. Instead of pressing the point, the Senate apparently agreed to Blount’s claim, and dismissed the case.
(The Louisiana Territory was transferred to French control and in 1803, facing the prospect of war with England, Napoleon Bonaparte agreed to sell it to President Thomas Jefferson for $15 million, or about $18 per square mile, nearly doubling the size of the country at that time.)
HOW NIXON AVOIDED IMPEACHMENT
Professor Dershowitz cites as a more recent precedent — the resignation of President Richard Nixon in 1974, when he was on the brink of being impeached on account of his direct involvement in the coverup of the Watergate scandal.
On June 17, 1972 five Nixon re-election campaign operatives conducted a burglary of the offices of the Democrat National Committee, housed in the Watergate building complex. The plot went awry when a building security guard discovered the burglary in progress and called the police. They arrested the intruders, who were soon linked by the FBI to White House operatives G. Gordon Liddy and Howard Hunt who had recruited them, and who were involved in other illegal activities on Nixon’s behalf, necessitating the cover-up.
Two years later, after the US Supreme Court ordered the Nixon White House to release the audio tapes of the president discussing the details of the coverup with his aides in the Oval Office, it became clear that his remaining days in the White House were numbered. On August 7, 1974, three senior congressional Republicans — Senate Minority Leader Hugh Scott, House Minority Leader John Rhodes, and Senator Barry Goldwater — made it clear to Nixon that his political support had collapsed and he faced almost certain impeachment in the House and conviction in the Senate for his role in the Watergate scandal.
Nixon, who had already been considering the move, resigned two days later, on August 9, transferring the White House to Vice President Gerald Ford. Even though Nixon’s guilt on a potential charge of obstruction of justice was clear, there was no effort by Democrats to impeach him after he left office, because everyone in Congress had assumed that the Senate had lost its jurisdiction to put him on trial.
Nixon’s resignation was a traumatic experience for the country, further undermining the American people’s already shaken faith in the federal government. In an effort to jumpstart the national healing process, less than a month later, on September 8, 1974, Ford told a nationwide television audience that he had was issuing a presidential pardon for Nixon for any crimes he may have committed during the Watergate scandal. Granting the pardon was a courageous decision on Ford’s part, because his advisors had accurately warned it would make it very difficult for him to win the 1976 presidential election in his own right. Ford knowingly sacrificed his own political ambitions for the sake of the unity of the nation.
NIXON’S MOMENT OF COURAGE
Nixon, despite his overwhelming ambition to become president and his very evident character flaws, also displayed similar courage and patriotism by deciding not to challenge the outcome of the 1960 presidential election. There was substantial evidence that John F. Kennedy’s victories in Illinois and Texas, which gave him his margin of victory in the Electoral College, were due to massive vote count manipulation by Chicago Mayor Richard Daley’s political machine, and by the Texas political bosses supporting Lyndon Johnson, who was JFK’s running mate. Yet Nixon decided to spare the nation the rancor and division that would have inevitably resulted from an extended challenge to election night results.
There is also little doubt at this point that many Republicans who had supported Donald Trump’s presidency would have much preferred him to have followed Nixon’s example by accepting defeat gracefully, for the sake of the country, despite the credible evidence supporting his suspicions that the victory had been stolen from him.
The latest effort by Democrats to impeach and convict Trump even after he has left office has confirmed the belief by Trump’s voters that Joe Biden will be a puppet president whose strings are pulled by progressive Democrats and the elites who control the Washington establishment and the mainstream media, and despise Trump’s working-class supporters, who now make up the new Republican voter base. The efforts over the past two weeks to silence Trump on social media and to condemn every conservative who ever spoke out in support of Trump or expressed other dissenting opinions demonstrate the danger and utter contempt of this alliance of progressives and elites for the core constitutional principle of freedom of speech.
The outcome of Trump’s Senate impeachment trial is likely to have a lasting impact — not only on the fate of former President Trump and the next four years of Joe Biden’s presidency, but also on the future of American democracy.