House Democrats make legal case for Trump impeachment amid growing bipartisan support

Trump 'actively encouraged the mob to besiege the Capitol in defense of his supposed electoral victory,' Judiciary Committee Democrats write

House Majority Leader Steny H. Hoyer, D-Md., leaves the House chamber after Rep. David Cicilline, D-R.I., delivered the article of impeachment against President Trump, on Monday, January 11, 2021.  (Tom Williams/CQ Roll Call)
House Majority Leader Steny H. Hoyer, D-Md., leaves the House chamber after Rep. David Cicilline, D-R.I., delivered the article of impeachment against President Trump, on Monday, January 11, 2021. (Tom Williams/CQ Roll Call)
Posted January 12, 2021 at 8:56pm

The House Judiciary Committee defended Congress’ ability to impeach President Donald Trump, in a 50-page report that states lawmakers don’t have to worry about the president’s free speech rights or the dwindling time remaining in his current term.

The committee’s Democrats countered arguments from Trump supporters in Congress and legal circles that the effort has constitutional problems, including that the First Amendment protects Trump and that he would be out of office before the Senate could hold a trial anyway.

The committee Democrats write that Trump, in a speech just before Wednesday’s events and also more broadly since the Nov. 3 election, “actively encouraged the mob to besiege the Capitol in defense of his supposed electoral victory.”

They state that the House “seeks to vindicate the most recent election, protect it from a President who defies it, and protect future elections from presidents who may try to do the same.”

“It is true that the President's remaining term is limited — but a President capable of fomenting a violent insurrection in the Capitol is capable of greater dangers still,” the report states.

The House is expected to vote on an article of impeachment, which has picked up support from some Republicans, on Wednesday.

Former Harvard Law professor Alan Dershowitz, who defended Trump a year ago in the Senate trial after the House impeached Trump for actions related to Ukraine, has questioned the House's ability to hinge a second impeachment on Trump’s speech Wednesday to supporters.

The Supreme Court and other courts for a century have struggled to develop a jurisprudence which distinguishes between advocacy and criminal incitement.

“And in the leading case of Brandenburg v. Ohio, a unanimous decision, the Supreme Court basically said that what President Trump said on Wednesday, as much as I disapprove of it and many people disapprove of it on its merits, is protected by the First Amendment to the Constitution,” Dershowitz said on Fox News.

“It comes within core political speech. And to impeach a president for having exercised his First Amendment rights would be so dangerous to the Constitution,” Dershowitz said. “It would lie around like a loaded weapon ready to be used by either party against the other party.”

House Democrats, in the report, counter that interpretation of Brandenburg applied to private citizens, but Trump has a high-level position of public trust that makes him more accountable for his words.

Impeachment also doesn’t turn on whether a president committed a crime, the House Democrats argue. A president who incites violence against the Congress and three of the highest-level federal officials — and does so while Congress counts the electoral votes in an election he lost — is precisely the sort of conduct warranting impeachment and removal from office, they add.

“Impeachment is about preserving the Nation from a threat to the constitutional order, not imposing punishment,” the committee report states. “Nowhere did the Framers suggest that a President must be allowed to remain in office if his abuses involved speech that would otherwise be shielded from criminal regulation by the First Amendment.”

The committee report also seeks to counter arguments from J. Michael Luttig, a former federal appeals court judge, and others who say a Senate trial would be unconstitutional after Trump leaves office. The Senate isn’t scheduled to return until Jan. 19, and Joe Biden will be sworn in on Jan. 20, leaving no time for a trial before Trump leaves office.

“The Constitution itself answers this question clearly: No, he cannot be,” tried by the Senate after he leaves office, Luttig wrote in an op-ed in The Washington Post. “Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.”

Rep. Jim Jordan of Ohio, the Judiciary Committee's top Republican, and other Republican members of Congress recently have raised similar questions about the constitutionality of such a late impeachment.

Ultimately, only the Supreme Court can say whether the Senate can hold an impeachment trial for a president who has left office, Luttig wrote, but it would be unlikely to do so when the Constitution’s text is so clear.

Other legal experts have challenged Luttig’s view, arguing that the Supreme Court ruled in 1993 that impeachment was a political question best left up to Congress. Such a reading would also allow presidents, simply by resigning ahead of a Senate vote to convict, to avoid Congress using the impeachment process to prevent them from ever holding office again.

The committee Democrats, in their report, argue that Congress has an obligation to warn future presidents that this behavior is unacceptable.

“This message must be sent even on the President’s last day in office,” the report states. “There is no merit to the startling and dangerous idea that a president may engage in high Crimes and Misdemeanors in their final weeks in office and escape the operation of the Impeachment Clause.”