A guest opinion by Everett Wohlers, a former deputy secretary of state in Idaho.
Senate Republicans have over recent days argued that the Constitution does not permit the impeachment and conviction of a President after he leaves office. On January 26, 45 Republican Senators voted not to proceed to trial on the impeachment voted out by the House, invoking that argument, i.e. that the Constitution precludes conviction of an impeached former President. Since they lost that vote, the Republican Senators have been using that argument to justify their anticipated votes to acquit former President Trump in the impeachment trial this week. That argument is plain and simple poppycock. There is no need for complicated legal interpretation of the Constitution in this respect. Any literate person can figure it out.
Debunking the “Unconstitutional” Argument
The language of Article I, Section 3, paragraph 7 of the Constitution is clear on its face. It says, "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. . . ." [Emphasis added.] That is, it allows imposition of either or both of the remedies (removal and disqualification), so long as no further remedy is imposed. To impose only one of the remedies authorized by paragraph 7 does not extend further than them, but less, which is not prohibited. Since those limitations in paragraph 7 are the only limitations on paragraph 6's grant to the Senate of “the sole power to try all impeachments,” it is clear that the Senate can try an impeachment for the sole purpose of disqualification of the impeached person from ever again holding federal office. The position of the 45 Senate Republicans is, then, totally contrary to the clear language of the Constitution.
The Substantive Case for Conviction
The likely reason that the Republican Senators are relying on that specious argument is that the substantive case for conviction is so clear that a vote to acquit would be a clear violation of their duty to the Constitution, while they fear the consequences to them in their next election of voting to convict the object of fealty of their voting base. The bases for the substantive case for conviction are succinctly set out in the Article of Impeachment that was delivered to the Senate on January 26.
The first two sentences of the Article of Impeachment set out the legal standards for impeachment and conviction of the former President. The first sentence cites the standard of Article II, Section 4 of the Constitution, which is commission of “high crimes and misdemeanors” by the subject of the impeachment. The second sentence cites Section 3 of the 14th Amendment to the Constitution, which prohibits the holding of federal or state office by any person who has “taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States [and who has] engaged in insurrection or rebellion against the same . . . .” They are examined separately as follows.
--High Crimes and Misdemeanors
As to the commission of “high crimes and misdemeanors, there are at least two relevant crimes in federal law which the former President could be found to have committed. The first of those is set out in 18 U.S. Code Section 2383, which says in relevant part, “Whoever incites . . . insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto . . . .” The second crime is set out in 18 U.S. Code Section 2384, which says in relevant part, “If two or more persons . . . conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . . .” The facts establishing the former President’s guilt under both of the cited sections were witnessed in real time on electronic media by the whole country.
With respect to Section 2383, then-President Trump engaged in a number of actions, some of them repeated many times, that incited the mob to storm the Capitol to stop the final count of electoral votes. A few of the more significant of those actions were: (1) Near constant public events at which he told his followers that he had really won the election, but that it had been stolen from him by massive fraud, and that they must “stop the steal;” (2) Having his legal team file some 60 meritless (and quickly dismissed) legal actions in courts charging election fraud in swing states won by Joe Biden; (3) Issuing a public call-out at an event on December 19 for his followers to come to Washington, DC, on January 6, the day of Congress’ formal count of the electoral votes, telling his followers to ““Be there, will be wild!” – a message that he reinforced in tweets on at least December 27 and 30, and on January 1; and (4) Immediately following speeches by his acolytes such as Rudy Giuliani and Donald Trump, Jr., that urged the assembled crowd on the Ellipse on January 6 to engage in “war” to stop the count of electoral votes, Trump gave an incendiary speech in which he: recounted that he had won the election, but that it was being stolen from him; repeatedly urged his agitated followers to go to the Capitol where Congress was engaged in counting the electoral votes; and told them to “fight like Hell” and to “take back our country.”
If the then-President’s intent was not sufficiently clear from his speech, it was made so after the mob invaded the Capitol, when he pointedly ignored multiple frantic calls from members of Congress pleading for him to call off the mob before it killed them, and when he refused to mobilize the DC National Guard until evening. The violent insurrection was clearly predictable and connected to then-President Trump’s assemblage and incitement of the mob that he knew was prepared to do violence to the Capitol and members of Congress, and it was further enabled by his refusal to quickly call off the mob or to call out the National Guard. He was, therefore, guilty of the crime set out in Section 2383.
With respect to Section 2384, it is clear that then-President Trump did not plan or act alone in his attempt to stay in office by preventing completion of the formalities of election of Joe Biden by Congress’ count of electoral votes. In the period between the November election and the inauguration of President Biden, then-President Trump actively plotted and worked with a wide variety of acolytes to find a way to prevent the transfer of power to the President-elect. Those people included, among many others, Rudy Giuliani, Michael Flynn, Amy Kremer, Mike Lindell, Sidney Powell, Alex Jones, Charlie Kirk, Donald Trump, Jr. and Kimberly Guilfoyle. The accounts of their meetings and planning are too voluminous to cover here, but are available in many public sources. Further, on January 6, several of the speakers that preceded then-President Trump on the podium urged the mob on with clear allusions to using violent means to stop the count of electoral votes, including Rudy Giuliani and Donald Trump, Jr.
The planning and coordination among these people and Donald Trump by definition constituted conspiracy. And their objective was to prevent Congress from completing its legal duty to count the electoral votes. That is, they conspired to “by force . . . prevent, hinder, or delay the execution of [a] law of the United States.” Then-President Trump and his co-conspirators were clearly guilty of violation of Section 2384.
-- Engagement in Insurrection
Donald Trump took his oath of office as President on January 20, 2017. The presidency is a “federal office.” The oath of office includes swearing to “preserve, protect and defend the Constitution of the United States.” The discussion above of the-President Trump’s actions in the context of 18 U.S. Code Section 2383 clearly establishes that he “engaged in insurrection.” Therefore, he is barred by Section 3 of the 14th Amendment from ever again holding any federal office.
It is clear that Article I, Section 3, paragraph 7 of the Constitution permits the impeachment and conviction of a former President for the purpose of barring him from future federal office, so there is no procedural reason for the Senate not to convict Donald Trump. It is also clear, based on his violations of 18 United States Code Sections 2383 and 2384, that he should be convicted under the provisions of Article II, Section 4 of the Constitution, relating to “high crimes and misdemeanors.” And finally, it is clear that he should be forever barred from holding any federal office, as provided both by Article I, Section 3, paragraph 7 of the Constitution and by Section 3 of the 14th Amendment to the Constitution.