In the hastily thrown together 11th hour and 59th minute impeachment sequel of now former President Donald Trump, the bench presiding over the trial will be occupied by a new face. No, Chief Justice John Roberts did not retire, rather, he’s decided to sit this trial out, leaving many to question the legitimacy of Trump’s second impeachment in less than 2-years.
Two weeks ago, four Democrats introduced a single article of impeachment against the sitting president for inciting an insurrection, but the timing, being so close to the transition of power, leaves unanswered questions about its procedural correctness and merit.
According to Article 1 Section 3 of the Constitution, “when the President of the United States is tried [for impeachment], the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Democrats have brought us into a sticky Constitutional situation: President Trump was impeached on January 13th, less than 7 days before his term expired, for allegedly inciting the January 6th Capitol Riots which resulted in the death of 5 Americans, including one Capitol Hill police officer.
Joe Biden was sworn in as the 46th President on January 20th, ending Trump’s four year term as President, removing the Impeachments core punishment, removal from office, null.
While the House impeached Trump 12-days ago, Impeachment Managers selected by Democrats did not deliver the Article of Impeachment to the Senate, a procedural formality, until January 25th, five days after he left office.
For his role in sparking the January 6th riots, Democrats argue, Trump should be convicted of insurrection, and, under Article 3 of the 14th Amendment, be barred from holding public office. They’re effectively steam rolling any chance of a 2024 Presidential run.
“President Trump,” the single impeachment article states, “repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.”
Trump “reiterated false claims that ‘we won this election, and we won it by a landslide’. He also willfully made statements that, in context, encour12 aged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore,'” the article continued.
In Lou of Justice Roberts, Vermont Senator Patrick Leary [D], President Pro-Tempo of the Senate, will preside over Trump’s trial. When asked about his ability to remain impartial, Leary told reporters “I have presided over hundreds of hours in my time in the Senate. I don’t think anybody has ever suggested I was anything but impartial in those hundreds of hours.” When asked a similar question by another reporter, Leary said, “I don’t think there’s any senator who over the 40-plus years I’ve been here would say I’m anything but impartial in ruling on procedure.”
Historically speaking, the Chief Justice does not preside over impeachment trials unless it’s of the President. Otherwise, the Vice President, or more recently the President Pro-Tempo presides over non-sitting president impeachments. But Trump was impeached while President, which leaves the question open of whether the Constitution mandates the Chief Justice oversee this specific and odd scenario.
The case against Trump is extremely weak on three fronts:1) The charged language Democrats cite, telling his supporters to “fight” and to make their voices heard, is common day-to-day political rhetoric echoed by office holders from town councils to Congressmen, Senators, and Presidents past and future. Rep. Lauren Boebert compiled a brief exerts from Democrat’s speeches using the same charged language. [see below]. No one would, rightfully, insinuate them as invoking an insurrection, yet here we are.
- In 2008, President Obama said, “I need you to go out and talk to your friends and talk to your neighbors. I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face.” Source
- In June 2018, Rep. Maxine Waters said, “If you see anybody from that cabinet in a restaurant, at a department store, at a gasoline station, you get out and you create a crowd. And you push back on them, and you tell them they’re not welcome anymore, anywhere.” Source
- In July 2018, Senator Cory Booker said, “That’s my call to action here. Please just don’t come here and then go home. Go to the Hill today…Please, get up in the face of some congresspeople.” Source
- In June of 2018, then Minority Leader Nancy Pelosi said, “I just don’t even know why there aren’t uprisings all over the country. And maybe there will be.” Source
- In 2017, Senator Tim Kaine said, “So, the way we get outside the bubble is we take advantage of this tremendous public outcry against the administration…What we’ve got to do is fight in Congress, fight in the courts, fight in the streets, fight online, fight at the ballot box, and now there’s the momentum to be able to do this.” Source
- In August 2020, Rep. Ayanna Pressley said, “There needs to be unrest in the streets for as long as there’s unrest in our lives.” Source
- In March 2018, Joe Biden said, “If we were in high school, I’d take him behind the gym and beat the hell out of him.” Source
- In February 2018, Donny Deutsch said, “People need to start taking to the streets. You know this is a dictator.” Source
- In October 2018, former Attorney General Eric Holder said, “If they go low, we kick them.” Source
- In October 2016, Robert Deniro said, “I’d like to punch him in the face.” Source
- In June 2017, Johnny Depp said, “When was the last time an actor assassinated a President?” Source
- In September 2018, Carol Cooke said, “Where is John Wilkes Boothe when you need him?” Source
- In January 2017, Madonna said, “Yes, I’m angry. Yes, I am outraged. Yes, I have thought an awful lot about blowing up the White House.” Source
- In October 2017, Rep. Maxine Waters said, “I will go and take Trump out tonight.” Source
- In August 2017, Sen. Maria Chappelle-Nadal said, “I hope Trump is assassinated!” Source
2) Trump, even as a public official, maintains his right to free speech, even if he’s wrong. The election was not riddled with fraud as he claimed, and his lawyers failed to prove it in court on multiple occasions, but free speech does not end when fact checkers debunk a claim. Maybe Trump believed November’s irregularities could have swung the election, and maybe he didn’t. None the less, Congress dishing out legal reprimandations for protected speech is a dangerous precedent.
3) The Supreme Court set an extraordinarily high bar in Brandenburg v. Ohio for punishing speech that could result in violence. A deadly and tragic attack on our nations capitol took place as Trump gave a speech to supporters, but what he said mirrored that of the hundreds of previous speeches and rallies hosted by the former President. None resulted in chaos and unprovoked violence even remotely comparable to that on January 6th. No reasonable person would have suspected that day would be the exception, and nothing in his more than an hour long talk could be reasonably construed as a call to violent action. On multiple occasions that day, Trump told supporters to protest “peacefully,” a line conveniently left out of the articles of impeachment.