The Democratic Rule of Law on Trial

First Amendment Cases of the Trump Era

Sonja Grover

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000599725
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines selected high-profile U.S. First Amendment cases occurring during the Trump era as a vehicle for exploring a possible fundamental commonality in understanding the democratic rule of law globally. In each of these cases, the adjudicating body's analytical legal strategy is discussed in terms of how it reinforces or detracts from the democratic rule of law. It was and continues to be highly internationally anticipated as to what legal examples are being set by this established democracy when confronted by legal contests between the former Trump administration and those alleging their rights were somehow violated by the executive of that time. Thus, the book is instructive for an international audience on the essential role of the courts in protecting democracy through providing, where supported by the law and the facts, a remedy for the aggrieved comparatively powerless. The book will be essential reading for academics and researchers working in the areas of constitutional law, politics and human rights.

1 The Democratic Rule of Law and Free Speech Examined in the Context of the Second Impeachment Trial of Donald J. Trump

DOI: 10.4324/9781003153764-1

Introduction

Constitutional offences concern a breach of the public trust and of democratic values and, at their core, subvert the democratic rule of law itself. The U.S. Constitution, it is here argued, thus unsurprisingly allows for and demands accountability also in respect of living former federal civil officials who have allegedly committed constitutional offences while in office. There is then, it is here contended, no constitutional bar in the U.S. Constitution to impeachment proceedings in the House and Senate against a living former federal civil officer accused of “high crimes and misdemeanors” (the U.S. Constitution’s term for constitutional offences) committed while still in office. In former U.S. President Trump’s second impeachment case, the jurisdictional question was decided by the Senate in favor of the House Manager Prosecutors. Nevertheless, the majority of Republican senators continued to hold, and even after the second impeachment trial on the merits reached its conclusion in an acquittal, that the Senate had had no jurisdiction to try the case in the first instance. This, it is here argued, did damage the democratic rule of law in America and will continue to do so if left unchallenged. It created the erroneous impression for the U.S. public and globally that former federal civil officers of the United States can, on purported jurisdictional grounds, constitutionally escape accountability for alleged constitutional offences committed against that democracy while still in office.

We will here consider the issues commonly held to underlie the jurisdictional question whether living former U.S. federal civil officers are subject to impeachment and Senate trial. That is we will address the formulation by the Defence and the Prosecution in the Trump second impeachment case of the issues generally considered embedded in the jurisdictional question; formulations that lead to predictable arguments and counterarguments. This author will analyze the robustness of the contrary formulations of the issues which the Defence versus the Prosecution respectively contend are foundational to the jurisdictional question and consider the implications of that reassessment.

The overarching specific jurisdictional question in this case is whether a living former U.S. President was constitutionally still subject to Senate impeachment trial proceedings subsequent to the House having passed an impeachment article with the exhibition of that article to the Senate occurring when President Trump was no longer holding office due to his term having expired. We will also consider whether historical precedent is in fact instructive on the fundamental jurisdictional question whether living federal “civil officers” (as that latter term is defined in the Constitution of the United States)—when no longer in office—are yet potentially subject to an impeachment legislative trial (i) their having been accused of high crimes and misdemeanours and (ii) impeachment articles(s) having been formulated by the House and passed by the House through a vote and advanced to the Senate. It will be argued that there is no such phenomenon factually or legally as “late impeachment” in such an instance as some have termed the Senate impeachment trial of a living U.S. former federal civil officer. This since, on the respectful view here, as will be argued, such impeachment processes are also timely and jurisdictionally constitutional.

We will consider then in particular here the arguments advanced by the Prosecution and the Defence on the jurisdictional question whether Donald J. Trump was subject to a second Senate impeachment trial as, at that time, a living former President of the United States for alleged high crimes and misdemeanours committed while in that aforementioned office. We will address the arguments as proffered both in the submitted briefs and the oral arguments of the parties. Let us begin, however, with (i) the text of the U.S. Constitution regarding impeachment of a President and (ii) the text of the single article of impeachment for alleged “incitement of insurrection” that was deliberated upon by the Senate in the second impeachment trial of the then former U.S. President, Donald J. Trump, 45th President of the United States of America:

Impeachment Clause: Article II, s. 4 (U.S. Constitution): “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”¹

1 U.S. Const. Article II, s. 4. Note that by practice, no U.S. congressional members or senators or military personnel are impeachable as civil officers under Article II, s. 4. Federal judges are impeachable if they fall under the category of judges referenced by Article III s. 1 of the U.S. Constitution which states, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” State judges can be impeached by their State legislative bodies. Congressional members and senators may be removed by expulsion by their own legislative body but not through impeachment.

The Impeachment Article in the Second Impeachment of Donald, J. Trump, Former President of the United States:

“H. Res. 24

In the House of Representatives, U. S.,

January 13, 2021.

Resolved, That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate: Article of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

Article I: Incitement of Insurrection

The Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Further, s. 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office… under the United States.” In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States, in that:

On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that “we won this election, and we won it by a landslide.” He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.” Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.

In all this, President 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. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”²

2 Congress.Gov H.Res.24—Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors. 117th Congress (2021–2022).

The Language of the Impeachment Article in the Trump Second Impeachment Case

In the aforementioned impeachment article (at paragraph five), the House Managers (the Prosecution) make several key contentious claims that give rise fundamentally to the jurisdictional question. That jurisdictional question is whether a living former U.S. President can be impeached and, if found guilty by the Senate, removed from office and potentially disqualified from holding future U.S. federal civil office. The Prosecution in the Trump second impeachment alleged that the President i) “will remain a threat to national security, democracy, and the Constitution if allowed to remain in office”; ii) “Donald John Trump thus warrants impeachment and trial, removal from office and iii) disqualification to hold and enjoy any office of honor, trust, or profit under the United States (emphasis added).”³

3 Second Impeachment Article Against Donald J. Trump paragraph five excerpts.

When the January 13, 2021, article of impeachment was drafted and voted on in the House, President Donald J. Trump was still in office. Hence the reference in the aforementioned impeachment article at paragraph five to the necessity for “removal” and “disqualification” (given the alleged continuing threat should President Trump remain in office or hold future federal civil office) was, on its face, straightforward. However, a central contentious aspect arises in that the article of impeachment was advanced to the Senate with the House Managers knowing that Trump’s term as U.S. President would expire before the Senate trial for the second Trump impeachment could be held. Thus, the Senate trial and verdict in President Trump’s second impeachment case involved Trump as a living former President of the United States. The questions thus arise as to (i) in what sense, if any, “removal” from office by the Senate is still applicable to a living former U.S. President and (ii) how a living former U.S. President can–if convicted by the Senate on the impeachment article—be disqualified from the opportunity in the future to “hold and enjoy any office of honor, trust, or profit under the United States” if he or she cannot, in the circumstance, factually be removed from office in the first instance.⁴ The quandary in that respect arises if the U.S. Constitution Article II s. 4 is interpreted to mean that (i) the President must be “removed from office” as a factual matter (implying the penalty is to be imposed only on a sitting President) and that (ii) factual removal is to occur before he or she can be disqualified from holding future U.S. federal civil office. On the foregoing Trump disputable Defence interpretation then, to recap, the Senate verdict in a case of disqualification can only be applied where (i) a sitting U.S. President was found guilty by the Senate of an impeachable offence(s) and factually removed from office and then, (ii) given the gravity of the alleged ongoing threat and/or other consideration, disqualified from holding future U.S. federal civil office. We will here, however, challenge the viability of that Trump Defence interpretation relating to the Senate jurisdictional matter. First though, let us recall some of the pre-trial events in Senate in the second impeachment Trump case.

4 Here, as mentioned, President Trump’s term expired before the Senate trial was conducted and the impeachment acquittal verdict was rendered by the Senate.

Pre-trial Machinations in Senate in the Second Impeachment of Donald J. Trump, 45th President of the United States

The Dismissal Attempt

The House approved the article of impeachment in the second impeachment of President Trump and it was, as was here previously discussed, set out in House Resolution 24 of January 13, 2021, while President Trump was still in office. The vote was 232 to 197 with 222 Democrats and ten Republicans voting in favor of the impeachment article.⁵ Donald J. Trump’s term of office as President expired January 20, 2021, when Joseph Biden was inaugurated as the 46th President of the United States. The aforementioned single article of impeachment was delivered to the Senate by the House Managers on January 25, 2021, after President...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Preface
• 1 The Democratic Rule of Law and Free Speech Examined in the Context of the Second Impeachment Trial of Donald J. Trump
• 2 The Trump First Amendment Twitter Case: Blocking the Public’s Political Speech on Government Social Media Accounts
• 3 The First Amendment Defence, Alleged “Political Speech” and Disinformation Campaigns
• 4 The First Amendment Right to Petition the Government for Redress Versus the Intimidation of Elected Officials and Speech Promulgating Disinformation
• 5 The First Amendment Rights of Public School Students: The Snapchat Case
• 6 The Democratic Rule of Law, Religious Freedom and the Public Interest: Different Cases, Different Equities to Consider
• 7 Concluding Remarks: On the Role of the Courts in Upholding the Democratic Rule of Law
• Index