The Constitution Supports the Impeachment of Trump and Disqualification From Office

The U.S. Constitution, historical precedents, and the undisputed facts offer clear, compelling reasons to hold Trump accountable and disqualify him from ever holding federal office again. 

The Constitution Supports the Impeachment of Trump and Disqualification From Office
In December 2019, hundreds of people gathered in front of the Iowa State Capitol in Des Moines calling for the impeachment of Donald Trump—one of 600 such rallies across the country on the eve of the first historic impeachment vote. (Phil Roeder / Flickr)

This week, Donald J. Trump will stand trial in the U.S. Senate on the single charge of impeachment for incitement of insurrection.  It is unprecedented for a president of the United States to be impeached twice by the House of Representatives.  It is unprecedented for a former president to be tried in the Senate after leaving office. 

But our Constitution, historical precedents, and the undisputed facts offer clear and compelling reasons to hold Trump accountable and disqualify him from ever holding federal office again. 

Is Trump Guilty of High Crimes and Misdemeanors?

When the Constitution was drafted, the framers had the wisdom and foresight to include impeachment as a means of ensuring that a president lives up to the oath to “faithfully execute the office of the president of the United States,” to “take care that the laws be faithfully executed,” and to “preserve, protect and defend the Constitution of the United States.” 

The Constitution provides that the “president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  The term “high crimes and misdemeanors” was understood by the framers to refer to an abuse of power by someone in a position of authority.

Throughout the 2020 election campaign, culminating with the deadly assault on Congress on Jan. 6, 2021, Trump willfully violated his most fundamental constitutional obligations.  The article of impeachment alleges that in the months preceding the Jan. 6 assault, Trump “repeatedly issued false statements asserting the presidential election results were the product of widespread fraud and should not be accepted by the American people.”  Trump is accused of willfully making statements that “in context, encouraged—and foreseeably resulted in—lawless action at the Capitol.”  

Back in December, Trump told his supporters this was a “fight to the death,” and he promised to hold a “wild” rally on January 6—the date set in the Constitution for a joint session of Congress to certify the election.  On that day, he kept his promise, telling his fans at a public rally to “fight like hell” or else “you’re not going to have a country anymore.”  He demanded, “You’ll never take back our country with weakness.  You have to show strength, and you have to be strong.” 

Inflamed by Trump’s commands, the insurrectionists marched down Pennsylvania Avenue and violently stormed the Capitol, interrupting the certification and terrorizing everyone inside. 

While the attack was underway, did Trump take steps to “preserve, protect and defend the Constitution”?  No.  On the contrary, he actually retweeted his incendiary rally speech and egged on his rabid supporters. 

“Our country has had enough,” he tweeted. “We will not take it anymore, and that’s what this is all about…You have to be strong.” The deadly violence would continue for hours.  Ultimately five people died.


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But the article of impeachment is not limited to what Trump said on Jan. 6.  It describes an ongoing course of conduct by Trump “to subvert and obstruct the certification of the results of the 2020 presidential election.”   In particular, it cites Trump’s deplorable phone call on Jan. 2 to Georgia secretary of state Brad Raffensperger urging him to “find” enough votes to overturn Georgia’s election results and threatening Raffensperger if he failed to do so.

All told, the article of impeachment alleges that Trump “gravely endangered the security of the United States and its institutions of government.” He “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government,” and he “betrayed his trust as president, to the manifest injury of the people of the United States.”  

Based on the facts we all saw with our own eyes, Trump is guilty of “high crimes and misdemeanors.”

Can Trump Be Tried in the Senate Now That He Is No Longer President?

Trump argues that he cannot be tried for impeachment because he is no longer president. But the letter, spirit and experience of the Constitution prove him wrong.  The independent, nonpartisan Congressional Research Service took a hard look at this question and rejected Trump’s claim, as have scores of constitutional scholars, from both parties. 

The Constitution Supports the Impeachment of Trump and Disqualification From Office
Protest at the White House the day after the firing of FBI director James Comey in May 2017. (Mike Maguire / Flickr)

Historians point out that the framers were well aware of the history of impeachment in Great Britain—particularly the famous case of Warren Hastings, a high official who was tried for impeachment after he left office.

Constitutional scholars also point out that Article I, Section 3 of the Constitution provides that “no person” shall be convicted without the concurrence of two thirds of the members of the Senate present. It refers to “person,” not “civil officers”—the term used elsewhere in the Constitution to refer to those presently serving in office. 

During the lifetimes of the framers, Senator William Blount was tried for impeachment in 1797 after he left office.  And in 1876, Secretary of War William Belknap was tried for impeachment after he left office. (He hurriedly resigned, hoping that his resignation would prevent his impeachment.  He was wrong.)  In 1846, former President John Quincy Adams declared that “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by [the] House for everything I did during the time I held any public office.” 

In short, no elected official gets a free pass to commit impeachable offenses and then resign or leave office and escape liability for his misdeeds.

Trump’s defenders argue that impeachment after an official leaves office makes no sense because the purpose of impeachment is to remove a wayward official from office.  But they ignore the very text of the Constitution, which provides a critical second purpose of impeachment:  Article I, Section 3 provides that in addition to “removal from office,” one who is convicted on impeachment shall suffer “disqualification to hold and enjoy any office of honor, trust or profit under the United States.” 

Thus, the House and Senate have the authority to impeach and convict Trump after he has left office and prevent him from ever running for federal office again.  

Does the First Amendment Protect Trump’s Speech on January 6?

Trump’s lawyers also argue that his inflammatory speech on January 6 is protected by the First Amendment—but they are wrong on this count as well.  The Supreme Court has made clear, in a series of decisions, that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” (Garcetti v. Ceballos (2006).)

In addition, in the case Brandenburg v. Ohio (1969), the Supreme Court held that the First Amendment does not protect speech which “is directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.”  Trump’s speech on January 6 constituted imminent incitement, and thus it is not protected by the First Amendment.

Trump’s words alone on January 6 are not the only basis for this conclusion.  There is extensive evidence that white supremacist organizations and extremists were summoned in advance by Trump to “fight to the death” at a “wild” rally that day.  White House sources indicate that the mobilization for violence was “closely monitored” by Trump’s social media operation.  One such message declared, “If Congress illegally certifies Biden, … Trump would have no choice but to demand us to storm Congress and kill/beat them up for it.”   During the insurrection, one rioter announced, “I was doing what he asked us to do.”

On the morning of January 6, newspapers and social media were filled with reports anticipating that the demonstrations could turn violent.  The New York Times quoted a local official who warned that some Trump supporters “have shown an alarming affinity for violence” and that there is talk of “disrupting the counting of votes in Congress, which would require extreme actions.”

Did Trump take steps to “preserve, protect and defend the Constitution” by canceling his rally and calling on his supporters to peacefully protest?  Of course not.  

Then, after he gave his incendiary speech at the Jan. 6 rally, and after the insurrectionists marched to the Capitol, and while they were violently storming Congress, Trump retweeted his speech and cheered on his raging supporters.  “Our country has had enough,” he tweeted as windows were being broken and people were being killed. “We will not take it anymore, and that’s what this is all about…You have to be strong.”

So Trump’s inflammatory speech at the January 6 rally is not the only reason to reject his claim of First Amendment protection.  His words at the rally must be judged in the context of his prior statements and conduct leading up to January 6, as well as his conduct and words during the attack on the Capitol.

As Liz Cheney, Republican congresswoman from Wyoming, succinctly put it:

The “president of the United States summoned this mob, assembled the mob, and lit the flame of this attack.  Everything that followed was his doing.”

Clearly, viewed in context, Trump’s deliberate and inflammatory speech constituted incitement unprotected by the First Amendment. 

Will Punishing Trump’s Incendiary Speech Set a Dangerous Precedent That Could Be Used Against Outspoken Dissenters and Protestors in the Future?

Anyone who cares about protecting the American tradition of robust, wide-open free speech should always be cautious about the precedent set by punishing someone for their speech.  There will be rallies and protests in the future supporting causes such as racial and economic justice, the rights of women, or the rights of religious and racial minorities at which people will be urged to “fight” for their rights or “be strong” or “take back their country.”  

We need to remember that Trump was not impeached and is not standing trial in the Senate as would a private citizen.  He is being held accountable for everything he did and said in his unique and powerful position as the president of the United States who took a solemn oath of office. 

He has been charged for “gravely endangered the security of the United States and its institutions of government,” which “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government,” and which “betrayed his trust as president, to the manifest injury of the people of the United States.” 

Convicting Trump will not a precedent for abridging the free speech rights of people who are not government officials and who peacefully speak truth to power.  

If Trump Is Acquitted, Will He Come Out the Winner?

If, despite American history and the text of the Constitution, and if, in the face of all the undisputed evidence, 17 Republican senators fail to join 50 Democratic senators to convict Donald Trump and disqualify him from ever holding federal office, the blame will forever rest with those who abdicated their constitutional duties. 

We all know what Trump did and said because we all saw and heard it with our own eyes and ears.  Trump is no winner.  And those senators who fail to vote to convict him are no winners, either. Members of the House of Representatives, on a bipartisan vote, fulfilled their constitutional duty by issuing the Article of Impeachment. History will recognize them as the winners. 

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About

Stephen Rohde, an author and social justice advocate, practiced civil rights and constitutional law for over 45 years, including representing two men on California’s death row. He is the former chair of the ACLU Foundation of Southern California and former national chair of Bend the Arc, a Jewish Partnership for Justice. He is also a board member of Death Penalty Focus, which on February 11, 2021, is honoring leading opponents of capital punishment, including Bryan Stevenson, at an online awards event.