Rudy and Barr, Back in the News

One hundred days into the Biden administration, two leading characters from the Trump years are making headlines again. Federal authorities executed search warrants at the home and office of Trump’s former attorney Rudy Giuliani, dramatically escalating the criminal investigation into his activities in Ukraine. And a federal judge harshly criticized former Attorney General William Barr and his Department of Justice for engaging in a cover-up concerning Barr’s handling of the Mueller report. The stories were an unwelcome reminder of the abuses that routinely took place during the Trump years, and highlighted that we still have a lot to learn about those abuses.

Rudy Giuliani

The Giuliani Investigation

We’ve known for some time that Rudy Giuliani is the subject of a criminal investigation by the U.S. Attorney’s Office for the Southern District of New York related to his dealings with Ukraine. Those activities are closely related to the events that led to Trump’s first impeachment, when Trump asked the president of Ukraine to “do us a favor” by providing dirt on Joe Biden’s son in exchange for U.S. assistance. In 2019 Giuliani was actively working in Ukraine to to dig up potentially damaging information concerning Biden, who was considered to be Trump’s most likely rival in the 2020 election.

Giuliani also was actively involved in the successful efforts to have Trump oust the U.S. ambassador to Ukraine, Marie Yovanovitch, who was notoriously tough on government corruption. Giuliani apparently saw Yovanovitch as an obstacle to his efforts. Her ouster was also a focus of Trump’s first impeachment, and Yovanovitch testified during the House impeachment hearings about Giuliani’s smear campaign against her that ultimately led to her removal.

Prosecutors apparently are exploring whether Giuliani was working not only for Trump but also on behalf of Ukrainian government officials or other Ukrainian individuals. Those Ukrainians may have been seeking favors from the Trump administration or may have wanted the ambassador removed for their own reasons.

The Search Warrants

On April 28th, federal agents executed search warrants at Giuliani’s home and office in New York City. They reportedly seized a number of phones and electronic devices looking for communications, perhaps on encrypted apps.

According to news reports, prosecutors in the Southern District sought to execute the search warrants as early as last summer. Top DOJ officials would have needed to sign off, given the sensitivity involved in searching the office of an attorney for the president. The Barr Justice Department refused to allow it. After Merrick Garland was sworn in as Attorney General, the Justice Department gave the go-ahead.

The most charitable explanation for the Barr DOJ’s refusal to approve the warrants would be DOJ’s unwritten policy to avoid investigative steps within sixty days of an election if they might influence the vote. But if approval was sought last summer, the election was much more than sixty days away. And that policy would not explain why the searches could not have been approved after the election and before Biden’s inauguration.

Last summer was also when Barr sought to remove the U.S. Attorney for the Southern District and replace him with a Trump loyalist. All of this raises suspicions that president Trump’s Justice Department sought to protect Giuliani by stifling the investigation into his Ukraine activities as long as possible – which also, of course, protected Trump himself.

Michael Cohen

Searching an Attorney’s Office

Giuliani and his lawyers responded with predictable outrage over the search warrants. Searching an attorney’s office does raise special concerns, due to the possibility that materials covered by the attorney-client privilege might be seized. But of course a law degree does not confer immunity from the criminal law, and in appropriate circumstances attorneys may be the subject of a search warrant just like anyone else. As with any search warrant, it requires a neutral judge or magistrate to find probable cause that a crime has been committed and that evidence may be located during the search. And the Justice Department has special procedures in place to review requests for such warrants and handle the screening of potentially privileged material.

The Trump years featured another prominent example of such a search: in April 2018 investigators executed search warrants at the home and office of Michael Cohen, president Trump’s former private attorney and “fixer.” Cohen ultimately was indicted on multiple charges, pleaded guilty, and was sent to prison.

As many criminals have learned the hard way, having an attorney involved in your activities does not necessarily mean that everything the attorney touches is privileged. The attorney-client privilege applies only to communications that involve providing legal advice. If an attorney is working as a business person or in some other non-legal capacity, their activities and communications will not be shielded by the privilege. The privilege also contains an exception for communications that are made in the furtherance of a crime or fraud.

After the Cohen search, a judge appointed a special master to review all of the seized materials and screen them for anything privileged before turning them over to investigators. Ultimately only a small amount of material was withheld. Recognizing the sensitivity of these searches and hoping to speed the process along, prosecutors have already asked the court to do the same for the Giuliani materials.

It will take some time for all of the seized materials to be reviewed and we shouldn’t expect anything to happen in the immediate future. But it’s an ominous sign for Giuliani. DOJ is unlikely to take the serious step of searching an attorney’s office without a compelling reason. That’s especially true when that attorney once represented the former president of the United States. Attorney General Garland would be extremely unlikely to sign off on such politically-charged warrants if this were a marginal case.

The Potential Criminal Charges

Much of the news coverage concerning potential criminal charges against Giuliani has focused on his possible violation of the Foreign Agents Registration Act, or FARA. At least one of the search warrants reportedly mentioned FARA as the potential crime under investigation. That law requires those engaged in political activities in the United States on behalf of a foreign principal to register with the Justice Department. Giuliani may have violated FARA by failing to disclose his work on behalf of various Ukrainian nationals.

Historically FARA was rarely enforced criminally. But the law has gained prominence in recent years, and during the Trump administration and Mueller investigation there were a number of high-profile FARA cases. Former National Security Advisor Michael Flynn was charged with violating FARA for failing to disclose that he was working for the government of Turkey (although he pleaded guilty to a different charge – before ultimately being pardoned). Former Trump campaign manager Paul Manafort also pleaded guilty to violating FARA for his undisclosed work on behalf of Ukraine.

But a search warrant does not need to name every crime under investigation, and other charges could be implicated as well. Financial crimes such as tax evasion or money laundering are always a possibility. Manafort, for example, also was convicted of tax evasion and money laundering based on his handling of the money he received from Ukrainians. If you’re keeping your work as a foreign agent a secret, you naturally have an incentive to hide payments for that work from the IRS and other authorities.

Another possibility is public corruption – taking part in a conspiracy to bribe president Trump. The first impeachment was essentially about bribery, although the articles of impeachment did not expressly cite that criminal law. The charge was that Trump offered to release military aid to Ukraine in exchange for that country’s help in digging up damaging information about Biden. This is an allegation of quid pro quo bribery: I will do an official act (release the aid) in exchange for something of value to me (the political dirt on my rival).

Giuliani was at the center of all these activities. He appears to have been working with a number of Ukrainians who were seeking something from president Trump — and may have been willing to offer something in return. Prosecutors could be investigating whether such conduct amounted to a conspiracy to commit bribery. A conspiracy charge would not require that the bribe was ever consummated or successful. Nor would it necessarily require charging Trump himself; Giuliani and others could be charged with simply trying to arrange the quid pro quo transaction.

Whether prosecutors are focusing on charges in addition to FARA is just speculation at this point. But it seems unlikely to me that DOJ would have taken the aggressive and politically explosive step of executing the Giuliani search warrants if they were looking only FARA, a relative technicality. That makes me suspect they are looking at something more substantial.

Would Rudy flip?

One tantalizing prospect that all of this raises is whether Giuliani would cooperate in an investigation of Trump in exchange for leniency. It’s hard to imagine Giuliani turning on the man to whom he has so slavishly linked his own image and reputation. But there are reports that their relationship is strained. Michael Cohen, for one, has opined that Giuliani would flip on Trump to save himself “in a heartbeat.”

There also have been reports that Giuliani is seeking Trump’s help in paying his legal fees and that he has not been paid for much of his legal work on Trump’s behalf. That raises some interesting prospects as well. If Giuliani feels like Trump has stiffed him, he may be more willing to cooperate against the former president. On the other hand, given all that Giuliani knows about Trump’s own potential misconduct, if Trump were to help Giuliani with his legal bills that could look like bribery of a witness, in violation of 18 U.S.C. 201: Trump paying Giuliani to keep his mouth shut.

Before this is over, Giuliani may end up wishing he had persuaded Trump to grant him a pardon before leaving office.

William Barr
Former Attorney General William Barr

The Barr Cover-Up

On March 22, 2019, special counsel Robert Mueller delivered his 400+ page report to Attorney General William Barr. Barr did not release the entire report, or the detailed summaries that Mueller prepared for that purpose. Instead, two days later he wrote a four-page letter to Congress purporting to summarize Mueller’s conclusions, and held a press conference. He noted that Mueller had declined to make a prosecutorial decision concerning whether Trump obstructed justice. Barr then announced his own conclusion that the evidence presented by Mueller did not establish that crime.

This extremely misleading letter and press conference set the public narrative for the still-secret Mueller report. It allowed Trump to claim he had been completely exonerated and that Mueller had concluded there was “no obstruction, no collusion.” Mueller himself objected to Barr’s characterization of the report which did, in fact, contain substantial evidence of obstruction of justice by the president. But by the time the full redacted report was released three weeks later, Barr’s “spin” had firmly taken hold.   

Barr testified before Congress that he had reached the conclusions in his letter after consultations with the DOJ Office of Legal Counsel and other Department attorneys. The public interest group CREW promptly filed a request under the Freedom of Information Act for documents related to those consultations. Barr’s DOJ withheld a number of documents, claiming attorney-client and deliberative process privileges. One withheld document in particular, a memo to Barr dated March 24, 2019 from Steven Engel in the Office of Legal Counsel and Ed O’Callaghan in the Deputy Attorney General’s Office, was the subject of a federal court ruling last week.

Federal Judge Amy Berman Jackson ruled on May 3 that the memo must be turned over. Much of her opinion deals with the somewhat dry procedural requirements of FOIA. But her conclusions about DOJ’s behavior are damning.

DOJ had claimed the memo was privileged because it involved DOJ attorneys giving legal advice to Barr concerning whether Trump had obstructed justice. Their story was that these attorneys had reviewed Mueller’s lengthy and detailed report on obstruction, formulated their advice to Barr, and written him a memo, which Barr then used to prepare his letter to Congress – all in the space of a couple of days.

Judge Jackson concluded that these claims were false. The memo itself and Barr’s infamous letter to Congress, she found, were all being drafted at the same time and by the same people. And all of those Trump DOJ officials agreed from the outset that Trump should not be charged with obstruction. The memo was not true legal advice to help Barr decide, but apparently was designed to provide legal cover for a decision that had already been made: “the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given.”

Judge Jackson’s conclusion that the fix was in when it came to obstruction of justice doesn’t really come as a surprise to those who followed the Mueller investigation. Before he was named attorney general, Barr – then a lawyer in private practice – wrote a nineteen page memo to the DOJ about why he believed the president could not be charged with obstruction for anything done in his official capacity. Many considered this memo a sort of job application for the attorney general position. When Trump appointed Barr, he was putting in place a final backstop against any potential obstruction of justice charges. And that’s exactly what he got.

“Disingenuous” = “You’re Lying”

Judge Jackson repeatedly accused Barr’s DOJ of being “disingenuous” before the court in its description of the OLC memo. She held that the affidavits submitted by DOJ officials were “so inconsistent with evidence in the record, they are not worthy of credence.” This is essentially a polite way of accusing the department of lying to the court and engaging in a cover-up about the true reasons for Barr’s actions. 

As Judge Jackson noted in her opinion, she is not the first judge to question Barr’s handling of the Mueller report and the credibility of his statements in court. In an earlier case involving the redactions to the Mueller report, Judge Reggie Walton also expressed his “grave concerns” about Barr’s characterizations of the report, which he found were at odds with Mueller’s actual conclusions. He questioned whether Barr had tried to create a “one-sided narrative” about the report in order to benefit Trump.

Barr and the Trump DOJ desperately sought to prevent the truth about Barr’s shielding of the president from coming to light – so much so that they were willing to lie to more than one federal judge about it. It will be interesting to see now whether the Biden DOJ chooses to appeal Judge Jackson’s order that the memo be turned over. They presumably would like the truth about Barr’s actions to be revealed. But depending on their internal review concerning the merits of Judge Jackson’s conclusions, they may feel they need to appeal to try to protect the institutional privileges potentially at stake. Hopefully the full memo will soon see the light of day.

Barr’s effort to use the Department of Justice to protect the president and his cronies was one of the most disturbing aspects of the Trump years. We saw it with Roger Stone and Michael Flynn. And this episode also ties right back in to the Giuliani story, where the Barr DOJ refused to approve the search warrants that could have unearthed evidence implicating Trump.

It’s apparent that we have still more to learn about the corruption within Barr’s DOJ.

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The Legal Arguments in Trump’s Second Impeachment Trial

The second impeachment trial of Donald Trump begins in the Senate today. The single article of impeachment returned by the House of Representatives on January 13 charges the former president with Incitement of Insurrection for his false challenges to the presidential election that culminated in the riot at the Capitol on January 6. Because Trump is already out of office, the primary purpose of the impeachment proceeding is to determine whether the Senate should disqualify him from holding any office of “honor, trust, or profit under the United States” in the future. Given Trump’s claims that he may run for president again in 2024, this is a question of some importance.

The House impeachment managers and the lawyers for the former president have filed briefs outlining their legal arguments. Those arguments fall into two main categories: arguments about Trump’s conduct and whether it justifies the sanction of disqualification, and arguments about the impeachment process itself and whether the trial of a former president is constitutional. The case against Trump on the merits is strong. But in the end, many Republican Senators are likely to take refuge in the “process” arguments and claim that a vote to impeach would be unconstitutional. This will allow them to avoid appearing to condone Trump’s misconduct while still voting to acquit and escaping the wrath of Trump’s millions of supporters.

Rioters in the Capitol
The rioters in the Capitol

The Events Leading To Impeachment

The House brief describes in detail president Trump’s assault on the 2020 presidential election. Much of the impeachment discussion has focused on Trump’s speech to the mob outside the White House on January 6, just before his supporters stormed the Capitol. But as the House brief points out, that speech was merely the culmination of a months-long attack on our democracy that began even prior to the election.

As early as the summer of 2020, Trump repeatedly refused to commit to a peaceful transfer of power if he lost the election, saying he would have to “see what happens.” At rallies and on Twitter he regularly claimed that the only way he could possibly lose the election would be if it were rigged against him. Before a single vote was cast, he was priming his supporters to believe that any result other than a Trump victory would  mean the election had been “stolen.”

Once the election returns started to come in, Trump repeatedly falsely claimed to be the winner. When the networks called the race for Biden, Trump declared the election results were fraudulent. In the weeks that followed, in addition to continually claiming that he was the true victor, he tried to pressure state officials to overturn the lawful election results. He summoned Michigan state officials to the White House to urge them to change the outcome of their state’s election. He repeatedly pressured and attacked Georgia state officials — Republicans who heroically resisted him and denied Trump’s claims that their election was tainted by fraud. In a now infamous, recorded call with those officials, Trump implored them to “find” about 12,000 additional votes to swing the state’s election to him.

Evidence discovered fairly recently also shows that Trump tried to use the Department of Justice to help him overturn the election results. Attorney General William Barr resigned after saying he saw no evidence of widespread election fraud. Trump then tried to pressure Barr’s successor Jeffrey Rosen to pursue voter fraud claims. When Rosen resisted, Trump reportedly hatched a plot to fire Rosen and replace him with a loyalist who would do his bidding, abandoning the plan only when senior DOJ officials threatened a mass resignation if he went forward. 

Trump also urged his supporters to come to Washington D.C. on January 6 to “fight” to stop Senate from counting the electoral votes and certifying Joe Biden as the winner. On December 19, he tweeted: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”

Then on January 6, Trump addressed the crowd at his so-called “Save America” rally. Before he spoke, his attorney Rudy Giuliani told the crowd it was time for “trial by combat.” Intelligence information, to which Trump would have had access, made it clear that the crowd was potentially dangerous. Many had brought gear such as ropes, ladders, and zip tie restraints. Some of them were armed, and carried plans of the Capitol. Trump addressed them, told them they needed to “fight like hell” to save the election from being stolen, and urged them to march to the Capitol. The riot ensued.

The House brief also details how during the riot Trump failed in his duty to protect the country – and to protect the co-equal branch of government on which he had just unleashed a mob. When reports of the riot came in, he reportedly was delighted and could not understand why others in the White House did not share his excitement. He resisted sending in the National Guard. Only after several hours did he release a tepid video message urging the rioters to go home, while still telling them that they were great people and he loved them.

The House managers present these actions as conclusive evidence that Trump violated his oath to protect and preserve the Constitution and to faithfully execute the laws of the United States. As they note in their brief: “If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be.”  As GOP Representative Liz Cheney put it when voting for impeachment: “There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.” This was a systematic, months-long assault on the free and fair elections and peaceful transfer of power that have been at the core of our democracy since the country was founded.

Trump addressing the "Save America'" rally
Trump addressing the “Save America” rally before the riot

Trump’s Defenses on the Merits

This will be an unusual trial, because so many of the facts are basically undisputed. Most of Trump’s misconduct, and the resulting chaos, took place in plain sight. Indeed, many of the House members who voted on impeachment and Senators who will take part in the trial were witnesses to, and even victims of, those events. Expect much of the evidence presented by the House managers to be videos of not only the riot itself but of Trump’s own words and actions in the weeks leading up to the riot.

There is relatively little that Trump’s attorneys can do to challenge these facts. Their arguments on the merits boil down to two claims: the insurrection wasn’t Trump’s fault, and trying to blame him for it would violate his right to free speech.

Trump’s lawyers argue he was not responsible for inciting the riot at the Capitol because intelligence sources indicate it had been planned well in advance. They argue the rioters were going to do what they had already planned to do, regardless of what Trump said during his speech. Those responsible are now being prosecuted, but Trump had nothing to do with it. As Trump’s lawyers stated in their brief: “The real truth is that the people who criminally breached the Capitol did so of their own accord and for their own reasons.”

The primary flaw in this argument is that it focuses exclusively on Trump’s speech on the day of the riot. It ignores Trump’s actions in the weeks and months leading up to the riot, attacking the election and urging his supporters to fight for him. The attack may have been planned in advance, but those plans did not spring from nowhere: Trump’s own actions played a key role. If you take Trump’s own actions out of the equation, it’s virtually inconceivable that the attack on the Capitol would have taken place.

The mob came to Washington after weeks of Trump urging them to act. All he had to do was give them a final little nudge. Trump’s speech was not the sole and isolated cause of the riot. It was rather the equivalent of a general addressing the troops and wishing them well as they embarked on a mission he’d been priming them for for weeks.

Further evidence of Trump’s responsibility for the riot is emerging from the cases of those individuals criminally charged with storming the Capitol. A number of them have defended their actions by claiming they were “patriots” responding to the commands of their president. They believed they were doing Trump’s bidding, answering Trump’s call to save democracy. The rioters themselves clearly understood what anyone can see: Trump was urging them to action. Having spent weeks whipping his devoted followers into a frenzy, Trump cannot now simply walk away and claim they were acting on their own.

The First Amendment Defense

The other primary defense on the merits is that Trump’s address to the mob on January 6 was protected by the First Amendment. His lawyers also claim that Trump’s repeated attacks on the election over several months are protected by freedom of speech. And they suggest there may have been some valid basis for those attacks – despite the rulings of dozens of courts to the contrary.

The First Amendment argument also suffers from the flaw that it focuses almost exclusively on the January 6 speech, rather than on Trump’s months-long course of conduct. This case is not based solely on Trump’s words. But even putting that aside, the First Amendment defense fails. As the House brief notes: “the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.” This is not a criminal case where Trump is being punished for his speech; it’s a political proceeding where he is being held responsible for his actions as president.

A president who seeks to cling to power by advocating an insurrection cannot take shelter behind the First Amendment. As the House managers argue: “No one would seriously suggest that a President should be immunized from impeachment if he publicly championed the adoption of totalitarian government, swore an oath of eternal loyalty to a foreign power, or advocated that states secede from and overthrow the Union—even though private citizens could be protected by the First Amendment for such speech.”

The defense also suggests that the House managers have cherry-picked from Trump’s speech, focusing only on the more incendiary language while ignoring the couple of sentences where he urged the crowd to peacefully protest. But the entire speech has to be considered in context, including all of the events leading up to the January 6 rally and Trump’s knowledge of the crowd’s likely intentions. Trump cannot insert a couple of “CYA” sentences about peaceful protest in more than hour-long remarks and then claim it insulates him from responsibility for the crowd’s entirely predictable reaction to the entire speech.

Finally, even if this were a criminal case, the First Amendment does not protect speech that advocates imminent violence. As I argued in this post, there is a strong case that Trump’s speech on January 6 could be punished as criminal incitement under the prevailing Supreme Court standards. If the First Amendment would not protect Trump from a criminal prosecution, it certainly will not shield him from the political process of impeachment.

The Process Arguments

The bulk of Trump’s arguments against this impeachment deal not with the merits but with attacks on the process itself. His lawyers claim it is unconstitutional to conduct an impeachment trial of a president who is no longer in office. They also claim the House violated Trump’s rights by rushing the impeachment, and that the impeachment is flawed because Chief Justice Roberts will not be presiding.

Trial of a former president

A good deal of the argument on both sides concerns whether it is constitutional to proceed with the trial in the Senate now that Trump is no longer in office. Indeed, the first day of the trial in the Senate is scheduled to be a four-hour debate on whether it is constitutional to proceed. Almost all Republican Senators have already signaled in an earlier procedural vote that they believe the trial is improper. The precedents, and the Constitution itself, are not completely clear on this point, and there has never been a definitive ruling from the Supreme Court.

The House brief devotes a great deal of time to making essentially pragmatic arguments in favor of the power to try a former official, including a president. They argue that presidents do not get a free pass to try to subvert an election or commit other high crimes or misdemeanors near the end of their term; there is no “January exception” to impeachment. If this were not the case, presidents could try to steal an election knowing there would be no practical consequences if they fail. And any official who engaged in crimes while in office could avoid any political consequences by simply resigning immediately before the House voted to impeach. The framers of the Constitution never would have condoned such a procedure. Congress must have the power, the House managers argue, to prevent such officials from running for office again by holding impeachment proceedings after they leave office.

The language of the Constitution itself is somewhat contradictory and confusing. Article I, Section 3, Clause 6 provides: “The Senate shall have the sole Power to try all Impeachments.” Some have argued that the use of the word “all” settles the matter. It doesn’t say, for example, that the Senate may try only impeachments of current officers. Because Trump was properly impeached before he left office, this argument runs, the Senate by definition has the power to try that impeachment.

On the other hand, Article II, Section 4 reads: “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.” This provision seem to imply that removal is the primary purpose of impeachment. When a president or other official is already out of office, this argument runs, removal is impossible and impeachment becomes nonsensical. That turns the proceeding into essentially an impeachment trial of a private citizen – something the Constitution would not recognize or allow.

Finally, Article I, Section 3, Clause 7 states: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Some argue this language suggests that disqualification from office can only follow conviction and removal. Because a former official cannot be removed, a proceeding simply to disqualify that individual is not allowed. But others, including the House managers, respond that this clause simply lists two possible punishments. In any given case it would be permissible to impose one, the other, or both. It also ensures that punishment is limited to these two options, as opposed to imprisonment, forfeiture of property, or some other penalty.

Ulysses S. Grant
Ulysses S. Grant

The Belknap precedent

The House brief cites a few 18th century precedents, in both England and the U.S., indicating that at the time the Constitution was adopted “impeachment” would have been understood to encompass proceedings against former officials to prevent them from holding office in the future. But perhaps the most important precedent is the impeachment of William Belknap, Secretary of War to president Ulysses S. Grant. In 1876 Belknap was accused of bribery and tried to avoid impeachment by resigning at the last minute. The House impeached him anyway. The Senate then put him on trial but ultimately acquitted him.

The Belknap case at least indicates that a majority of the Senate at the time believed it had the power to try a former official. However, nearly half of the Senators in  Belknap’s trial raised the same objection that is being raised by Trump: that the Senate had no power to proceed once Belknap was out of office. Because Belknap was ultimately acquitted, the proposition was never tested by any court. So although the Belknap case is a precedent, it’s not a very compelling one. It establishes that a majority of the Senate believed at the time that it could proceed, just as a majority does now. But it does not establish that this is actually constitutional.

The Risks of Impeaching Former Officials

Some claim there is a danger that impeaching former officials will be used as a political weapon to disqualify opponents from future office. For example, Professor Jonathan Turley has argued: “Under this approach, any new Congress could come into power and set about disqualifying opponents from public office despite their being private citizens. A Republican Congress could have retroactively impeached Barack Obama or retried Bill Clinton.”

But such concerns are not at issue here. President Trump was impeached by the House while he was still in office. The only issue here is whether the Senate retains jurisdiction to try the case if the official leaves office after being impeached. Questions about whether an official could be both impeached and tried after leaving office may wait for another day.

The weight of legal opinion appears to be that a Senate impeachment trial of a former official is constitutional. A large number of constitutional law professors have signed an open letter supporting the Senate’s power to conduct this trial. But there are other scholars who disagree. Ultimately the question could only be resolved by the Supreme Court. But that would require Trump to be convicted and then move to challenge that conviction, and that outcome seems unlikely. So the Senate will proceed, but the question whether that proceeding was actually constitutional seems destined to remain unresolved.

Due Process Arguments

Trump’s attorneys also make a variety of claims that the impeachment process has been unfair, rushed, and violates the former president’s due process rights. These arguments are largely atmospherics to suggest to the public, and particularly to Trump’s supporters, that he is being treated unfairly. But they have no real merit. Impeachment is a political process, and the rules are largely what Congress says they are.

The House argues that it needed to act quickly to impeach Trump while he was still in office and possibly remove him immediately. It’s true that didn’t happen, but it potentially could have had the Senate been willing to return to Washington for an immediate trial. The House managers also point out there was little need for an extensive investigation or presentation of evidence, since so much of the offense took place in the open – including in the Capitol building itself.

There is also some hypocrisy in this claim that the impeachment is flawed because it was so rushed. On the one hand, Trump is arguing that a president cannot be impeached once he is out of office. But on the other hand, he is criticizing the House for acting quickly because his term was about to end. Apparently he would argue that the House should have done a more extensive investigation – with the result that it would have been powerless to impeach when that investigation was over because Trump would already be out of office. He can’t have it both ways.

Chief Justice Roberts Not Presiding

The Constitution provides that when the president is being tried on articles of impeachment, the Chief Justice shall preside at that trial. Chief Justice Roberts has notified the Senate he will not preside, because this trial is of a former president, not the president. The trial will be presided over by Senator Patrick Leahy, president pro tempore of the Senate, with any ties broken by vice president Kamala Harris. Trump claims this means the impeachment is unconstitutional and that he cannot receive a fair trial in a proceeding headed by the Democratic Senate.

This argument also seeks to create an appearance of unfairness, but has no real substance. The text of the Constitution supports Roberts’ decision – the president, Joe Biden, is not being impeached. The Chief Justice typically does not preside over impeachment proceedings of other officials. The purpose of requiring the Chief Justice to conduct trials of a president appears to be to prevent a conflict of interest where the vice president – who is president of the Senate – would preside over an impeachment trial that could result in him becoming president if the sitting president is removed. That concern is not present here.

In addition, the presiding officer at an impeachment trial actually does relatively little. The Senate controls everything, including admission of evidence and rulings about witnesses, by Senate vote. As former Chief Justice Rehnquist once said about his role in presiding over the impeachment of president Clinton, “I did nothing in particular, and did it very well.” There is no real basis for a claim that Trump is harmed by not having Roberts preside, because the Democratic Senate would control everything regardless.

Hiding Behind Process

Here is how the House managers conclude their brief:

The only honorable path [after losing the election] was for President Trump to accept the results and concede his electoral defeat. Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. As the Capitol was overrun, President Trump was reportedly “delighted.” And rather than take immediate steps to quell the violence and protect lives, President Trump left his Vice President and Congress to fend for themselves while he lobbied allies to continue challenging election results.

The facts supporting Trump’s conviction are compelling. But it seems likely that most Republican Senators will take refuge in the process arguments and will refuse to convict, arguing that the proceeding is unconstitutional. This will allow them to avoid appearing to condone Trump’s misconduct, while still voting to acquit and avoiding angering Trump’s supporters.

The outcome of this political process may appear preordained. Nevertheless, proceeding is the right thing to do. Even if Trump manages to avoid conviction, it sends an important message that such actions by a president are completely unacceptable. This impeachment is important as a matter of history. It will build a record and serve as a public airing of the misconduct of a president that brought us perilously close to losing our democracy. That is worth doing.  

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