It’s an open question in my mind whether Donald J. Trump committed a high crime or misdemeanor justifying impeachment. Were he a private citizen, I would say there is no question his speech on January 6, 2021, was protected. He no more incited a riot than do cheerleaders at a pep rally. Crowds are combustible; a small group turned a mostly peaceful protest into something frightening.
But Donald Trump was not a private citizen when he faced throngs on January 6. He spoke as president of the United States. He had taken an oath to protect and defend the Constitution, and to see to it that the law was faithfully executed. Waving matches at a gas station seems derelict and irresponsible. The first amendment provides us with protection from government when we speak; Donald Trump had a fiduciary responsibility no one else had.
Did he abuse that trust? Did he engage in conduct threatening the constitutional order?
In the end, that is a judgment the Senate, and the Senate alone, gets to make.
I am persuaded the Senate has jurisdiction. Federal officials have been tried after they left office. Indeed, to do otherwise would encourage lawlessness late in a term. Why not abuse your position if there is no time to impeach?
The fact that Trump has already left office doesn’t defeat impeachment. He cannot be removed from an office he does not occupy, to be sure. But he can be barred from future service. There is a penalty that has teeth. The proceedings are far from moot.
Did Trump commit a high crime or misdemeanor?
There is no statute or code book that spells that out. The evidence from English history, colonial practices and the debate at the founding makes clear that a high crime or misdemeanor is more than a mere violation of the criminal law. It is an offense against the constitution itself, the established order, itself. We the people are victims of such an event. The term is vague because politics is drama in real time. The Senate can and should judge this matter.
So I believe there is jurisdiction to proceed. The action is not moot. And there are good arguments to be made that Trump sought to disrupt the counting of Electoral votes in Congress, an act that could have undermined our constitutional order by obstructing, for the first time in our history, the peaceful and orderly transition of power from one administration to another.
Trump’s lawyers waste all our time suggesting these proceedings are unconstitutional.
Were I defending Trump, I would begin by reading the following letter by Thomas Jefferson to John Adams’ son-in-law. It was written in 1787 shortly after federal troops fired on armed citizens in Western Massachusetts during Shay’s Rebellion, unrest provoked by a debt crisis as catastrophic in consequences to those affected as the pandemic is to us.
I would then ask the Senate to stop and think, to put aside partisanship and ask themselves the question so few seem willing to address in these tense times. What are the American people telling us? Why this riot, now? Why these divisions, now? Why Donald Trump? Why Marjorie Taylor Greene? Why this crisis in legitimacy that threatens to tear us apart?
I would read the letter and then cast my vote against impeachment. Striking at a symptom doesn’t address the cause, it merely inflames passions already ablaze.
Here’s what Jefferson wrote:
“Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of a rebellion so honorably conducted? I say nothing of its motives. They were founded in ignorance, not wickedness.
"God forbid we should ever be 20 years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13 states independent 11 years. There has been one rebellion.
"That comes to one rebellion in a century and a half for each state. What country before ever existed a century and half without a rebellion? And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them.
"What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen yard in order. I hope in god this article will be rectified before the new constitution is accepted.”
I expect Trump to be acquitted. This trial is sound and fury by a political class collectively guilty any willingness to reap what they have helped to sow.
We can do better. We must do better.