Washington Wednesday - Impeachment trial arguments

MARY REICHARD, HOST: It’s Wednesday the 10th of February, 2021.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s Washington Wednesday.

The second Senate impeachment trial of former President Donald Trump is underway in the Senate. Presentations began on Tuesday with House impeachment managers making their case as to why Trump is guilty of inciting insurrection while Trump’s legal team say both the charge and the trial itself are unjust. 

So what should we expect from this impeachment trial? How will both sides play it? And if the Senate doesn’t convict, does the trial even matter?

REICHARD: Here to help us find those answers is Frank Bowman. He is a professor of constitutional law at the University of Missouri. He also wrote a book about the history of presidential impeachments called High Crimes and Misdemeanors.

Professor, thanks for joining us!

FRANK BOWMAN, GUEST: My pleasure. 

REICHARD: Professor, put this trial in context for us historically. Have we had impeachment of presidents in the Senate prior to this? 

BOWMAN: Well sure. Not lots. There have really only been five impeachments or near-impeachments of presidents in our history. The first was Andrew Johnson after the Civil War. Then there was an interregnum of nearly a century before the near-impeachment of Richard Nixon, which would have happened except Nixon, of course, agreed to resign because he was convinced that he would have been impeached and removed. Then we skip to Bill Clinton, who was impeached but acquitted. And now, of course, we have President Trump.

REICHARD: Let’s talk procedure. What is the process for an impeachment trial? Time length and so on.  

BOWMAN: Well, there isn’t any prescribed process. The Constitution does say that when a president is being tried in the Senate, the chief justice should preside. Your listeners may know that Chief Justice John Roberts has elected not to show up, presumably on the theory that the person being tried is not the current president and, therefore, the conflict of interest for which the framers put in the requirement that he be there is no longer there. That’s because ordinarily and in theory the person who presides over the Senate is the vice president, whose constitutional job is to be president in the Senate. And the framers were worried that, well, if you have the vice president presiding over the trial of an actual sitting president, then there’s an obvious conflict of interest because if the president is convicted, then the vice president gets his job and we don’t want that, so we’re going to bring in somebody from the outside to do that. Chief Justice Roberts has apparently decided that it’s not necessary for him to be there since that problem doesn’t currently exist. But beyond those things, there’s really not much in the Constitution—nothing at all—about how the trial is to be conducted. The Senate has created a set of standing rules. The last set was enacted around, I believe, 1985. But even that set of standing rules leaves all kinds of room for maneuvering and change and can be changed at any point by vote of the Senate. 

REICHARD: Talk about the mission of House impeachment managers in this. What has to happen in order to actually convict the former president? 

BOWMAN: Well, the simple thing is that 67 Senators have to vote for it. I mean, that’s all there is. The Constitution says that, of course, that the verbal standard for an impeachable offense is treason, bribery, or other high crimes and misdemeanors, but all those terms other than treason are sometimes difficult to define. And, at the end of the day, the Senate basically gets to decide what they mean. The Senate gets to decide whether the evidence that it’s heard is sufficient and, indeed, every individual Senator is essentially his or her own judge on those questions. So, the naked political question is can the managers convince 67 Senators to vote ‘guilty,’ which means all 50 Democrats and at least 17 Republicans. The candid answer is under the current political circumstances is almost certainly not. It seems extraordinarily unlikely that they’re going to convince 17 Republicans to vote to convict this president. Now, of course, they’re going to make an effort. They’re going to present a case, but I think they know that it’s nearly impossible for them to change enough Republican minds to make a conviction happen and therefore I think they’re going to structure a case which will be factual, but it’s not going to be aimed at the people in the chamber. It’s going to be basically aimed at the American public outside the chamber in order to lay out a cohesive narrative of the things that the managers believe that the president did wrong. 

REICHARD: And if they were to convict him, would that automatically disqualify him from future office or further action be needed?

BOWMAN: Now, the Constitution says that [inaudible] conviction shall extend no further than removal and disqualification from [inaudible] office of honor, trust, or profit under the United States. Which basically means if the Senate in this case were to convict, it would then turn to a second question which is whether or not to vote disqualification. If they were to do that, if they were to vote disqualification, then Mr. Trump could never serve in any federal office, including—most relevantly—he couldn’t be president again, even if he were to try to run in 2024. 

REICHARD: Now, the article of impeachment charges him with incitement of insurrection. So a lot of the focus has been on Trump’s public comments ahead of the January 6th riot at the Capitol. But the House article also mentions efforts to reverse the outcome of the election. So what exactly is the core of the argument that House impeachment managers are making? 

BOWMAN: What a prosecutor in a criminal case might call the charging paragraph does talk about incitement to insurrection. One can argue about whether or not that was a wise choice because it does invite the kinds of arguments that you’re going to hear about whether or not Mr. Trump’s speech focused narrowly, looking strictly to his speech on January 6th, amounted to incitement and what happened at the Capitol was insurrection. However, as you correctly point out, if you look at the article more broadly, it really places the events of January the 6th in a bigger context, and the context is the effort beginning on November the 4th and culminating on January the 6th to reverse the results of a lawfully conducted election. And I think the managers will talk a good deal about January the 6th because it’s kind of the emotional core of their case. Obviously the citadel of our democracy was breached and people died and many others were injured. And that, of course, has an awful lot of emotional resonance not just for the congressmen who were there, the senators who were there, but lots of other people. But I think the managers will try to show that Mr. Trump’s conduct was impeachable regardless of whether or not anybody ever went inside the Capitol, regardless of whether or not anybody was injured or killed because the point of the exercise on January the 6th, was to try to induce congress to do something it has no constitutional power to do, which is to reverse the results of the election. So, I think they’ve got a delicate balance to strike between their charging paragraph that focuses on these words incitement and insurrection. And thus on the emotional core of the case and the broader context within which the events of January the 6th sit. 

REICHARD: Okay, now on the other side, what is the heart of the argument that Trump’s lawyers are making?

BOWMAN: Well, they make a couple of arguments. The principal one is the jurisdictional claim, that somehow or another because Mr. Trump has left office that he’s no longer subject to trial by the Senate, even though he was impeached while he was still the president. I think that’s a very weak argument. A few serious people have stuck with it, have maintained it. The overwhelming scholars and students of impeachment in the Constitution view it the other way. And certainly the best argument that can be made against jurisdiction is such a hyper-technical argument that certainly the Senate — if the Senate wants to go ahead and convict this president they’ll do it, and no court would ever think about reversing that result. It really is largely a political pretext. Trump’s lawyers have also, of course, argued things like, well, he has a First Amendment right to speak. I really don’t know that anything in Mr. Trump’s pleadings amounts to anything like a very serious argument against the charges against him. All of the arguments made are really efforts to give Republican Senators a plausible reason to acquit Mr. Trump and, thus, not to alienate his political base. Which is, to a large extent, their political base. 

Listen carefully and what you will hear is not a single Republican, I warrant you—if so, no more than one or two—will rise to try to defend the substantive conduct of Donald Trump. Instead, they’re going to rely on jurisdictional arguments.

REICHARD: We’ll be watching this closely and we’ll find out what happens. Professor Frank Bowman, thanks so much!

BOWMAN: My pleasure.

(AP Photo/J. Scott Applewhite) The Capitol is seen behind reinforced barricades as the second impeachment trial of former President Donald Trump begins in the Senate in Washington, Tuesday, Feb. 9, 2021. 

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