Responsible, but not impeachable
February 17, 2021
"This body is not invited to act as the nation’s overarching moral tribunal."
Jan. 6th was a disgrace. American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like.
Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President.
They did this because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he’d lost an election. Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty.
The House accused the former President of, quote, “incitement.” That is a specific term from the criminal law. Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day.
The people who stormed this building believed they were acting on the wishes and instructions of their President. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.
The issue is not only the President’s intemperate language on Jan. 6th. It is not just his endorsement of remarks in which an associate urged “trial by combat.”
It was also the entire manufactured atmosphere of looming catastrophe; the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-President.
I defended the President’s right to bring any complaints to our legal system. The legal system spoke. The Electoral College spoke. As I stood up and said clearly at the time, the election was settled.
But that reality just opened a new chapter of even wilder and more unfounded claims.
The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things.
Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally. This was different.
This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters’ decision or else torch our institutions on the way out. The unconscionable behavior did not end when the violence began.
Whatever our ex-President claims he thought might happen that day… whatever reaction he says he meant to produce… by that afternoon, he was watching the same live television as the rest of the world.
A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this.
Former aides publicly begged him to do so. Loyal allies frantically called the Administration. But the President did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.
Instead, according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!
Even after it was clear to any reasonable observer that Vice President Pence was in danger… even as the mob carrying Trump banners was beating cops and breaching perimeters… the President sent a further tweet attacking his Vice President.
Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.
Later, even when the President did halfheartedly begin calling for peace, he did not call right away for the riot to end. He did not tell the mob to depart until even later.
And even then, with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.
In recent weeks, our ex-President’s associates have tried to use the 74 million Americans who voted to re-elect him as a kind of human shield against criticism.
Anyone who decries his awful behavior is accused of insulting millions of voters. That is an absurd deflection.
Seventy-four million Americans did not invade the Capitol. Several hundred rioters did. And 74 million Americans did not engineer the campaign of disinformation and rage that provoked it. One person did.
I have made my view of this episode very plain. But our system of government gave the Senate a specific task. The Constitution gives us a particular role.
This body is not invited to act as the nation’s overarching moral tribunal.
We are not free to work backward from whether the accused party might personally deserve some kind of punishment.
Justice Joseph Story was our nation’s first great constitutional scholar. As he explained nearly 200 years ago, the process of impeachment and conviction is a narrow tool for a narrow purpose.
Story explained this limited tool exists to “secure the state against gross official misdemeanors.” That is, to protect the country from government officers.
If President Trump were still in office, I would have carefully considered whether the House managers proved their specific charge.
By the strict criminal standard, the President’s speech probably was not incitement.
However, in the context of impeachment, the Senate might have decided this was acceptable shorthand for the reckless actions that preceded the riot.
But in this case, that question is moot. Because former President Trump is constitutionally not eligible for conviction.
There is no doubt this is a very close question. Donald Trump was the President when the House voted, though not when the House chose to deliver the papers.
Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion.
But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted. The President, Vice President, and civil officers.
We have no power to convict and disqualify a former officeholder who is now a private citizen.
Here is Article II, Section 4: “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.”
Now, everyone basically agrees that the second half of that sentence exhausts the legitimate grounds for conviction.
The debates around the Constitution’s framing make that clear. Congress cannot convict for reasons besides those.
It therefore follows that the list of persons in that same sentence is also exhaustive. There is no reason why one list would be exhaustive but the other would not.
Article II, Section 4 must limit both why impeachment and conviction can occur… and to whom.
If this provision does not limit the impeachment and conviction powers, then it has no limits at all.
The House’s “sole power of Impeachment” and the Senate’s ‘sole Power to try all Impeachments’ would create an unlimited circular logic, empowering Congress to ban any private citizen from federal office.
This is an incredible claim. But it is the argument the House Managers seemed to make. One Manager said the House and Senate have ‘absolute, unqualified… jurisdictional power.’
That was very honest. Because there is no limiting principle in the constitutional text that would empower the Senate to convict former officers that would not also let them convict and disqualify any private citizen.
An absurd end result to which no one subscribes.
Article II, Section 4 must have force. It tells us the President, Vice President, and civil officers may be impeached and convicted. Donald Trump is no longer the president.
Likewise, the provision states that officers subject to impeachment and conviction “shall be removed from Office” if convicted.
As Justice Story explained, “the Senate, [upon] conviction, [is] bound, in all cases, to enter a judgment of removal from office.” Removal is mandatory upon conviction.
Clearly, he explained, that mandatory sentence cannot be applied to somebody who has left office.
The entire process revolves around removal. If removal becomes impossible, conviction becomes insensible.
In one light, it certainly does seem counterintuitive that an officeholder can elude Senate conviction by resignation or expiration of term. But this just underscores that impeachment was never meant to be the final forum for American justice.
Impeachment, conviction, and removal are a specific intra-governmental safety valve. It is not the criminal justice system, where individual accountability is the paramount goal.
Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were “still liable to be tried and punished in the ordinary tribunals of justice.”
We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.
I believe the Senate was right not to grab power the Constitution does not give us.
And the Senate was right not to entertain some light-speed sham process to try to outrun the loss of jurisdiction.
It took both sides more than a week just to produce their pre-trial briefs. Speaker Pelosi’s own scheduling decisions conceded what President Biden publicly confirmed: a Senate verdict before Inauguration Day was never possible.
This has been a dispiriting time. But the Senate has done our duty. The framers’ firewall held up again.
On Jan. 6th, we returned to our posts and certified the election, uncowed.
And since then, we resisted the clamor to defy our own constitutional guardrails in hot pursuit of a particular outcome.
We refused to continue a cycle of recklessness by straining our own constitutional boundaries in response.
The Senate’s decision does not condone anything that happened on or before that terrible day. It simply shows that Senators did what the former President failed to do: We put our constitutional duty first.