Trump should have been convicted. Here’s why.

The+first+amendment+protects+citizens+against+criminal+and+civil+sanctions%2C+but+it+doesn%E2%80%99t+protect+government+officials+against+impeachment+and+conviction.%0A

Photo: Ted Eytan, Wikicommons

The first amendment protects citizens against criminal and civil sanctions, but it doesn’t protect government officials against impeachment and conviction.

By Shannon Garrido, Deputy Opinion Editor

Most of us can agree that the Senate’s vote on Feb. 13 to acquit Trump of inciting the Jan. 6 Capital attack was more than disappointing. Not just because we want to put ‘Trump talk’ to rest, but because the crimes he committed demonstrate that he is a danger to the American people.

Much to my frustration, the arguments made by congressional Republicans for Trump’s acquittal have nothing to do with whether he is guilty and everything to do with procedural and ancillary issues. It demonstrates their prioritization of re-election and maintaining conservative loyalty, even if that means turning a blind eye to Trump’s violent influences. 

House impeachment managers, following the Senate vote to acquit Trump, held a press conference on Capitol Hill, where Democratic impeachment manager Jamie Raskin said, “This is about protecting a Republic and articulating and defining the standards of presidential conduct. And if you want this to be a standard for totally appropriate presidential conduct going forward, be my guest.”

Raskin has the right idea. Trump committed crimes as president that cannot be dealt with in a criminal court. Yet, Trump’s lawyers argued that it was unconstitutional to convict him because it violated the first amendment, also pointing to the fact that he no longer holds public office. 

For the case of violating the first amendment, it should be noted that public officials who are impeached for their speech are not immediately thrown in jail because it would violate said amendment. Instead, they are removed from office or disqualified from ever holding office to reinforce the idea that a president’s voice matters. 

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The argument that this impeachment violated the first amendment is a fallacy overall. Both Alexander Hamilton and James Madison spoke more broadly of impeachable offenses as violations of public trust, noting that Congress could rightly oust a president for inciting violence. Although it is very difficult to establish if someone has crossed the line of speech subject to criminal prosecution, this point stands: Government officials can be impeached and removed for speech that is not criminal. 

The first amendment protects citizens against criminal and civil sanctions, but it doesn’t protect government officials against impeachment and conviction. Enforcement officers like the DOC and Attorney General Karl Racine were unable to convict Trump because he never “explicitly” called for an insurrection. How is telling an audience of loyal supporters on the day Congress was slated to certify the election, “if you don’t fight like hell, you’re not going to have a country anymore,” not a coded message for violence? 

We know that even Republicans who ultimately voted for acquittal spent weeks lobbying Congress members to vote in support of Trump’s impeachment, one member of Congress alleging that Senate Minority Leader Mitch McConnell “wants Trump gone.” But for too many Republicans in Congress, Trump’s impeachment was just a political question weighing on the future of their party. The Washington Post predicted on Jan. 22 that even if Sen. McConnell were to vote to convict him, he’d immediately be hit with “a tsunami of rage from the right.”

It’s misleading and false, in any case, to view Trump’s Jan. 6 speech to Capital rioters as an isolated incident. It was part of the course of conduct that led to an attempted insurrection. 

Trump’s lawyers, David Schoen and Bruce Castor Jr. also argued that the proceedings are unconstitutional because Trump no longer holds office. There are many reasons why this reasoning is flawed, and why ultimately the Senate did vote to try Trump despite his term having ended in January. 

Stephen Vladeck, a constitutional law expert and professor at the University of Texas School of Law told CBS that another section of the Constitution—Article I, Section Three, Clause Seven—contemplates that the Senate can do two different things when an official is impeached. They can be removed from office, and they can be disqualified from holding future office. 

He said, “The expiration of President Trump’s term renders one of those moot, but not both of them.” Vladeck wrote in a New York Times op-ed that a public official can’t simply avoid the move to disqualify them from holding future office by resigning. The Senate has also traditionally separated a vote to convict an official on impeachment charges from a vote to bar him or her from holding future office. 

However, only three U.S. presidents (including Trump) have ever been impeached, and none of them were convicted by the Senate. The two-thirds majority needed for Senate conviction has proven to be a difficult barrier in America’s partisan political landscape. From a historical perspective, it is unlikely for an official to be barred from office without prior conviction. No U.S. president has ever been barred from office, but three federal judges have following their Senate convictions.

Section three of the 14th amendment lays out a different path to bar Trump from office, but without the two-thirds majority required for conviction. The provision states that no person can hold public office after engaging in “insurrection or rebellion against the United States.” Only a simple majority of both congressional chambers is needed to invoke this penalty—it was even used in 1919 to block an elected House Representative from assuming his seat after opposing U.S. intervention in WWI. 

This matters not for the sake of revenge, but because the mere possibility of Trump being barred from office is critical to the future of America. Trump incited a coup on the Capitol as the sitting president. He is a danger to the American people and they must be the priority, not protecting Trump from the consequences of his actions—especially if he deserves it. 

This acquittal doesn’t mean Trump will never face criminal charges for other skeletons in his closet. But the insurrection on Jan. 6 was more than just a criminal offense: it was a threat to elected officials, public safety, and democracy. That is why this should have been resolved on the Senate floor. Now, there seems to be an open-door policy for future presidents who wish to stoke fear and chaos. A door that leads them to believe they can attempt to overturn elections with violence, and walk away unscathed. 

 

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