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Donald Trump’s Second Impeachment

Trigger Warning: Please note that the discussion below contains one mention of suicide which may be disturbing to some readers.

Donald Trump became the first United States President to be impeached twice when the House of Representatives passed an Article of Impeachment charging the former stake salesman with “Incitement of Insurrection”. This Impeachment Article argued that Trump’s claims of election fraud encouraged violence by his followers who rioted at the US Capitol building.

Impeachment is the ultimate consequence for officials including the President, Vice President, Judges, and Supreme Court Justices, for acts that the Constitution labels as “High Crimes and Misdemeanors''. Contrary to popular opinion these are not crimes in the conventional sense, subject to statute and case law, but political crimes against the state and its people. Sometimes, this is driven if they have committed crimes such as perjury and sexual assault while others have been impeached for acts such as drunkenness.

Impeachment has a number of consequences. First of all, if applicable, the official is removed from office following their conviction. However, throughout history, this has not been a requirement, with a number of officials being impeached after resigning from their posts. Secondly, anybody convicted after being impeached is prevented from holding any office again.

Trump's supporters broke into the building and stormed the Chambers on the same day that Congress was certifying the results of the 2020 Election, naming Joe Biden as the next President. The former President’s supporters attempted to stop this certification and forcibly have Trump remain in office through the use of extreme violence. Seven people died due to the riots - five on the day and two police officers who committed suicide due to the actions of that day, with a further 140 officers injured.

After the House passed their Article of Impeachment and before the trial started in the Senate, Joe Biden was inaugurated, making Trump the first former President to face an impeachment trial. This quickly became a controversial issue with many Republicans arguing that it was unconstitutional to try a former President for impeachment.

This led to a floor vote on the issue prior to allowing the trial to start in which 45 Republican Senators voted in favour of unconstitutionality. These Republicans now had an excuse to vote against impeachment, not on the merits of the case, but on the issue of constitutionality. If the same number of Republicans voted against the impeachment, this would be more than enough votes to acquit the former President.

Once the trial started on 9 February 2021, the first full day was dedicated to relitigating the question of constitutionality. On this day, the House managers provided precedent from prior impeachments of ex-officials and discussions from the Founding Fathers to show that impeachment was designed not just for current officials. Lead manager Jamie Raskin gave an impassioned speech about the loss of his son before the insurrection on 6 January 2021 and pleaded with Senators not to provide a precedent for a “January Exception”. He argued that if the former President’s legal team's argument about constitutionality was granted, a President could do whatever they wanted in the final days in office and face no consequences if they could not be impeached.

The Senate agreed with the House Managers' arguments with 56 senators voting that the trial was constitutional and one changing their vote from the previous vote. This meant that the House Managers could proceed to argue the rest of the case on the merits rather than the constitutionality question and decide if Trump should be convicted.

The merits argument from the prosecution advocated that Trump had incited the mob that stormed the building. They relied heavily on video footage of the riot, which showed rioters getting close to the Senators and Vice President and showed footage of them discussing plans to take hostages and execute those in the Chamber with “Hang Mike Pence” being a common chant.

The prosecution argued that this only took place after the President questioned the Vice President’s courage for not rejecting states' slates of electors - which he had no legal ability to do. The House Managers argued that Trump incited the mob and therefore threatened the lives of those in the Chamber, and if they did not hold him accountable, he could run for office in 2024 and use the same tactics to attack those who disagree with him. Therefore, they argued, Trump must be convicted for his actions and prevented from running for office again.

Trump’s lawyers' analysis of the merits of the case consisted of many of the same overtures and platitudes that the right-wing have made in recent years about “Cancel Culture”, claiming that this trial was Democrats’ attempt to silence the President. They claimed that Trump’s speech before the riot was protected free speech and that his claims of election fraud were genuine. They used videos of Democrats telling their supporters to “fight” for causes they believe in, claiming that the Democrats are hypocrites. David Schoen, Trump's attorney, claimed that the former President did not encourage violence from his supporters and that the terms used by Trump were common in political life. They also claimed that his words did not meet the legal standard of “Seditious Acts” under the Constitution as he had not intended them to result in violence and instead, were just indicative of a political democratic fight.

Trump’s defense relied heavily on arguments that they would use if Trump had found himself in court under charges of “Incitement”. These defenses relied heavily on definitions found in statutes and precedent surrounding the illegal act of sedition and incitement. This legal standard for proving incitement is extremely high under the “Brandenburg Test”, established by the Supreme Court in 1969, which states that speech must be directed at inciting violence and poses an imminent threat of violence if the individual is to be prosecuted for incitement.

Whether or not Trump would be found guilty in an Article 3 court by meeting the requirements of the Brandenburg Test is beyond the scope of this article. However, something that Trump’s legal team failed to understand in their defense is that impeachment is a political tool, not a legal one. Therefore, arguments that appeal to legal defenses can play a role but are not dispositive of whether an individual should be impeached. This is something which the House Managers understood in their arguments for conviction being from the political consequences of the Senators vote.

However, the political nature of impeachment, within the highly polarised political environment we find ourselves in today, means that the Senate, split evenly between the parties, was never going to convict Trump with the required two-thirds majority. More than 86 percent of Republicans were against the impeachment and Pro-Trump candidates threatened to challenge any law-makers who voted against the former President in the next Republican Primaries.

With Congress having an over 95 percent re-election rate, a Primary is the biggest political consequence most of them have to worry about. This was proven to be the case when, expectedly, only 57 Senators voted for impeachment, 10 short of the number needed for conviction. Impeachment is therefore broken within the current political systeml it was designed for a political body without partisanship, and the Senate is no longer that body. Within our current political climate, no party is going to support a vote to convict one of its own members. If within our system we want accountability for the actions of officials, outside of the ballot box, impeachment needs to be reformed.


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