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House Democrats make constitutional case for impeaching Trump in scathing memo

Crystal Hill
·7 min read
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A group of House Democrats overseeing the impeachment case against former President Donald Trump laid out their argument Tuesday morning on the constitutionality of impeaching Trump for allegedly inciting the deadly Capitol riot during the counting of Electoral College votes on Jan. 6.

Trump was impeached by the House on Jan. 13 on an incitement charge for his role in the attack that left at least five people dead and led to federal criminal charges against more than 90 individuals. He’s now set to stand trial in the Senate on Feb. 9.

“Since the dawn of the Republic, no enemy — foreign or domestic — had ever obstructed Congress’s counting of the votes,” House impeachment managers said in the trial memo. “No President had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes. Until President Trump.”

(L-R) Impeachment managers Representatives Jamie Raskin (D-MD), Diana DeGette (D-CO), David Cicilline (D-RI), Joaquin Castro (D-TX), Eric Swalwell (D-CA), Ted Lieu (D-CA), Stacey Plaskett (D-US Virgin Islands AT-Large), Joe Neguse (D-CO), and Madeleine Dean (D-PA) leave the Senate floor after delivering the article of impeachment on Capitol Hill on January 25, 2021 in Washington DC. (Melina Mara-Pool/Getty Images)
The House impeachment managers leave the Senate floor after delivering the article of impeachment on Jan. 25. (Melina Mara-Pool/Getty Images)

The House managers — Reps. Jamie Raskin, Diana DeGette, David Cicilline, Joaquin Castro, Eric Swalwell, Ted Lieu, Stacey Plaskett, Madeleine Dean and Joe Neguse — said in a statement that the Senate “must convict President Trump, who has already been impeached by the House of Representatives, and disqualify him from ever holding federal office again. We must protect the Republic from any future dangerous attacks he could level against our constitutional order.”

The memo argues that the U.S. Constitution does not restrict impeachment to people currently in office, and interprets the text as giving Congress broad powers to pursue impeachment per Article 1.

“By its plain and categorical language, the Constitution vests the Senate with full jurisdiction to hear any valid impeachment case brought by the House for high crimes and misdemeanors. And it makes perfectly clear that the Senate is empowered to ‘try all Impeachments,’ which at bare minimum must include jurisdiction where the House impeached an official while he was still in office,” the memo states.

The allegations against Trump stem from a rally that happened before the riot on Jan. 6, during which Trump urged his supporters to “fight like hell” to overturn the results of the 2020 presidential election, which he falsely claimed was stolen from him.

Impeachment managers
Impeachment managers delivering the article of impeachment for "incitement of insurrection" against former President Donald Trump. (Aaron Schwartz/Xinhua via Getty)

In a brief filed Tuesday, Trump’s legal team denied that the former president engaged in “insurrection or rebellion” against the U.S., according to a copy of the brief. Bloomberg reports that Trump’s lawyers are expected to argue next week that Trump’s rhetoric was constitutionally protected speech. They will also say that House Democrats did not properly execute the impeachment, which did not include any committee hearings or fact-finding efforts.

According to Bloomberg, Trump’s legal team plans to cite the U.S. Supreme Court case Brandenburg v. Ohio, which delved into the question of whether a Ku Klux Klan leader who was convicted under Ohio law for giving a speech that advocated for violence was protected by the First Amendment. In a landmark decision on free speech, the court ruled that such rhetoric is generally protected under the law unless it directly urges people to take an unlawful action.

The Democrats’ memo addresses the First Amendment argument, stating that not only does the amendment not apply to an impeachment proceeding, but it also doesn’t “shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests,” the memo said, citing Branti v. Finkel and Elrod v. Burns, two Supreme Court cases that involve First Amendment protections for government workers.

The impeachment managers’ memo cites Trump’s repeated false assertions leading up to Jan. 6 that the election was beset by widespread voter fraud. He constantly undermined the electoral processes, Democrats argue, in the battleground states that he lost to Joe Biden.

President Donald Trump speaks at the "Stop The Steal" Rally on January 06, 2021 in Washington, DC. (Tasos Katopodis/Getty Images)
Then-President Trump speaks at the “Stop the Steal” rally on Jan. 6. (Tasos Katopodis/Getty Images)

Trump’s brief stated that the former president exercised his First Amendment rights after the election on Nov. 3 to “express his belief that the election results were suspect.” Trump’s remarks before the riot, his lawyers say, had nothing to do with the attack at the Capitol and was “clearly about the need to fight for election security in general, as evidenced by the recording of the speech,” the brief stated.

“The House memo dispatches that ‘protected speech’ argument neatly,” Harvard Law professor and constitutional scholar Laurence Tribe, whose work is cited in the memo, told Yahoo News via email, “explaining why the protections for speech by private citizens have no place in the context of impeaching a former president and why the standards of Brandenburg v. Ohio, even if applicable, would be easily met by the way Trump actively aimed an angry mob at the Capitol, incited their attack on lawmakers and police, and then sat by and watched the havoc the mob wrought without lifting a finger to stop the devastation, something a private citizen would’ve been powerless to do but that a sitting president could easily have done.”

There has been debate among lawmakers over whether impeaching Trump after he’s left office is allowed under the Constitution. In Trump’s brief, his lawyers argue that Trump can’t be removed from a public office that he no longer holds. In cases of impeachment, the Constitution limits the Senate’s authority to removal from office, the brief states.

But the Democrats’ memo argues that whether Trump is currently in office doesn’t matter.

“The Constitution governs the first day of the President’s term, the last day, and every moment in between,” the memo said. “Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term.”

U.S. Capitol
Liu Jie/Xinhua via Getty

The memo points to Article 1, Section 3, Clause 7, which states that “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.”

“The clause does not say that both sanctions are required,” the Democrats’ memo said, quoting Michael McConnell, a constitutional law scholar and former President George W. Bush-appointed federal judge, “it says that the judgment may not go beyond imposition of both sanctions.” Therefore, “the clause does not require removal; it just precludes the Senate from imposing penalties like fines, imprisonment or death.”

In other words, the text doesn’t rule out impeaching Trump, the memo argued, it just limits the judgments that can be imposed on him.

“In fact,” the memo said, “it is impossible for the Senate to impose disqualification on a current official: it can disqualify only a former official. If the accused is currently in office, and is convicted by the Senate, they are removed upon conviction. By the time Senators separately vote on disqualification, they are considering what penalty to inflict on someone who is at that point a former officer.”

The impeachment article against Trump was passed by the House by a vote of 232-197 last month, with 10 Republicans joining the Democrats in the chamber. The article of impeachment charged that Trump “gravely endangered the security of the United States and its institutions of Government” by promoting false election fraud claims, seeking to illegally manufacture a different election outcome and inviting his supporters to attend the Jan. 6 rally in Washington that turned violent.

“He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government,” the impeachment article stated. “He thereby betrayed his trust as President, to the manifest injury of the people of the United States.”


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