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Column: Trump’s defenders don’t get it. Only impeachment — and conviction — fits what happened on Jan. 6

Attorney Bruce Castor speaks during the second impeachment trial of Donald Trump.
Attorney Bruce Castor and other Trump defenders are weak on argumentation and wrong on a deeper issue: The former president’s behavior demands impeachment and its punishments.
(Senate Television )

The presentation by the lawyers for former President Trump on the first day of his second impeachment has been roundly panned, including — reportedly — by Trump himself.

It was in fact difficult to watch, especially after the crisp and meticulously organized presentation by the House impeachment managers, which showed up the Trump defense as slapdash and flailing. That contrast added one Republican — Sen. Bill Cassidy of Louisiana — to the Democrats’ side when the senators voted on the question of the constitutionality of the trial.

The Trump team’s weak argumentation isn’t its only deficit. A deeper flaw underlies the specifics of Trump’s defense in the Senate and the rest of the sundry arguments his allies keep throwing around.

It’s the impeachment, stupid.

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Trump’s conduct on Jan. 6 was repugnant and possibly criminal, but his core offense was the stunning abuse of his executive power in attempting to violently impede the peaceful transition of power. That’s a political offense and it urgently calls for the political response provided in our constitutional scheme: impeachment, removal and banishment from future political office. Any other penalty is only an inferior approximation of what the Constitution requires.

Start with the one defense argument that can be taken at all seriously, that the Senate lacks jurisdiction over a president once he has completed his term. The great weight of scholarly opinion — including from respected conservatives — rejects that position on a careful examination of text and history, the proper tools of constitutional adjudication.

That technical argument also pales in comparison to this: Trump was impeached by the House while in office for conduct that represented a breathtaking abuse of his responsibility and powers as president.

Igniting a mob to storm the Capitol and impeding the peaceful transfer of power stands on its head the president’s primary constitutional duty: to “take care that the Laws be faithfully executed.” And note: Such actions can only come at the very end of a president’s term, when he or she is faced with electoral ouster.

Viewed through that prism, it would be not just wrong but perverse to deny society the full use of the single mechanism — impeachment and trial in the Senate — designed specifically to redress official misconduct unique to the president.

The rest of the Trump attorneys’ arguments — that the former president didn’t receive due process or that his conviction would offend the 1st Amendment because he was just engaging in political speech when he exhorted his followers to march to the Capitol — don’t hold water on their own terms.

Trump has received ample notice of the case against him and ample opportunity to be heard in the Senate trial. As for “free speech,” even if the other firebrands have been equally incendiary (as Trump’s lawyers argue), their conduct cannot be compared to a president’s.

To paraphrase Oliver Wendell Holmes Jr. in a case that barred a 19th century cop from engaging in politics while he was on the force, Trump may have had a citizen’s right to speak his mind on Jan. 6, but he didn’t have the right to grotesquely abuse his enormous presidential power with his words.

These defenses not only don’t hold up, they have been imported from criminal law, and on that basis they have no place in an impeachment proceeding.

The purpose of criminal law is calling to account serious antisocial behavior. It vindicates norms that apply to all members of the community. What Trump did is more pernicious, and singular. It victimized all Americans because it struck at the democratic process itself.

As Alexander Hamilton put it in the Federalist Papers, impeachment and its punishments are designed for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Harms that Hamilton would say meet the standard of “high crimes and misdemeanors” are “done immediately to the society itself.”

Trump ally Alan Dershowitz claims that bypassing impeachment and Senate conviction wouldn’t give Trump a free pass because he would still be subject to criminal punishment. Leaving aside the monumental challenge, and possible imprudence, of a criminal prosecution related to, say, incitement of insurrection against a former president, a jail term isn’t the punishment that Trump’s conduct screams out for — namely preventing him from holding, and abusing, future political office.

We have only one president, and in him or her reposes the executive power of the United States. The framers were acutely aware that abuse of that power — especially in the service of illegitimately hanging on to it — represented the keenest threat to constitutional democracy. They provided the in-case-of-fire-break-glass remedy of removal and political banishment.

Rep. Liz Cheney (R-Wyo.), third in the Republican House leadership, got it exactly right when she described Trump’s actions as the greatest presidential betrayal in history: “The president of the United States summoned this mob, assembled the mob and lit the flame of this attack.”

The flames raged; the alarm is still sounding. We have to break the glass.

@HarryLitman


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