President’s primer
Impeachment defense absurd
The former president’s lawyers raise three defenses: (1) you cannot try a former president, (2) even if you could, punishing him would amount to a bill of attainder, and (3) even if you could do 1 and 2, he did nothing wrong because his speech is protected by the First Amendment.
The defense is absurd, contrary to the constitutional text and the original understanding of the impeachment clauses, and not supported by historical practice. In addition, trying the former president and banning him from future office is neither a bill of attainder nor does it violate the First Amendment.
It is absurd because once an official is convicted in an impeachment trial, the official is immediately removed from office. At that point, the Senate decides any other punishment. Thus, in every case, a decision to bar the person from holding future office always happens after the person no longer is in office.
It is also absurd because, if true, then any official could thwart the impeachment process by quitting before a Senate trial or, as in this case, commit impeachable offenses near the end of the person’s term when the Senate would not have time to try the case.
The constitutional text does not preclude trials after the person leaves office. When it talks about an impeachment trial in Article I, it uses language (“person” and “party”) that does not limit a trial to the office-holder (unlike the limitation to office-holders when it describes who can be impeached in Article II).
The framers intended to expand the impeachment power, not to limit it. They knew that in England and in some of the states only former officials could be impeached and barred from further office. The framers’ innovation was to allow current officials to
also be impeached and removed from office during their term. This expansion did not eliminate the possibility to try a former official. In fact, shortly after the Civil War, the Senate tried a former official who resigned on the eve of his trial.
A Senate trial and a ban on holding future office is not a bill of attainder. Bills of attainder happen when a legislature singles out a person and punishes them without a trial in court. But the Constitution specifically allows the Senate to conduct a trial and impose punishment on a single person.
In other words, an impeachment trial is the exception to the bill of attainder rule. If it were not, then every impeachment conviction would be a bill of attainder. And that makes sense.
The Constitution limits punishments in impeachment trials to removal from office and a ban on holding future office. The verdict in an impeachment is not a criminal penalty and says nothing about what a court might do in a future, properly conducted criminal trial. The person removed from office can later be tried by a court for any crimes committed in office.
Ironically, if the Senate adopts a binding censure resolution that invokes the 14th Amendment’s ban on insurrectionists holding future office, it would be a bill of attainder even if it the House also passed it and the current president signed it.
The First Amendment does not prevent Senate punishment in this case. First, if this were a criminal trial for inciting an insurrection, the former president would have a valid First Amendment defense. But this is not a criminal trial. It is a unique constitutional procedure designed to protect the country from a person unfit to hold office. The Senate can use common sense to decide if the former president’s words amounted to incitement and render him unfit for any future office.
Second, the former president’s words may not be protected by the First Amendment. A person who intentionally uses language likely to incite imminent violence cannot claim First Amendment protection. The former president primed his audience for almost two months prior to his Jan. 6 speech on the Capitol ellipse by lying about the election. His words, to paraphrase Rep. Liz Cheney, lit the kindling the president had stacked. He cannot complain when an angry mob he called to Washington took his calls for action literally and seriously.
Third, the First Amendment protects citizens from government censorship, but it does not protect a president from the political consequences of his words. The people can vote a president out of office for what he says even if all of it was protected by the First Amendment, but I cannot lose my state job because of this essay. The Senate can decide that the president’s words render him unfit for office even if the president might not be criminally or civilly liable for those words.
Thus, neither the constitutional text nor the original understanding of the text nor the historical practice nor any other part of the Constitution prevents a former president from being tried by the Senate after leaving office. Indeed, the historical understanding and practice as well as the impeachments clause’s purpose all support the coming Senate impeachment trial of the former president.