In a normal court case, a party is free to raise whether a court has jurisdiction over the subject matter at any time. The court itself can raise the question. Once a court determines it lacks subject-matter jurisdiction, the case ends immediately. If there is no power to hear a case, then, quite literally, there is no case at all.
Donald Trump’s lawyers have raised the matter of subject-subject matter jurisdiction in their response to House Articles of Impeachment. In sum, they contend that because Trump is no longer president, there cannot be a trial.
A week or so ago, I might have been persuaded by that argument. Now, I am not so sure. In large measure that is due to a book by Frank O. Bowman, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. It is a work of impeccable scholarship. A good friend, and rock-solid lawyer, Andrew Warren of Kansas, recommended it to me. (Thank you, Andy.)
Impeachment is not an ordinary court case. Indeed, it’s not even a court case at all. The Senate is free to adopt such procedures as it sees fit, and, unlike a court, it is not even bound by its own precedents in cases past. Our Constitution gives to the Senate the right to act, in accordance with the procedures of its choice, on the political question of whether a president has engaged in impeachable conduct.
Even the phrase “high crimes and misdemeanors” is peculiar, and unfamiliar to litigators appearing in court daily. The class of acts involved here fall short of the criminal law’s definition of treason. It encompasses acts which, in the Senate’s view, threaten the functioning of the republic. Yes, that is an ambiguous standard, but that’s why the Senate has to vote by a supermajority of two-thirds to convict.
The founders debated whether to have impeachment powers in the Constitution at all. Wouldn’t this stack the deck too much in favor of the Legislature, tilting the separation of powers doctrine in unworkable ways? The simple answer is that it has not done so in more than two centuries.
Were I a Senator, here’s my vote:
First, the Articles of Impeachment were filed when Trump was president. Therefore, the action was timely filed. I would deny the motion to dismiss insofar as it claims a non-president cannot be tried.
Second, while the mandatory remedy for impeachment is removal from office, the Senate has discretion on whether to bar a person from future federal office. The former claim is now moot; the latter is not. That is sufficient basis to proceed. Logic does not suggest you must do the former even to consider the latter. I would deny the motion to dismiss on those grounds as well.
Third, Trump moves to dismiss on grounds that he is being persecuted for protected speech in violation of the First Amendment. This is a powerful argument. There is no exception to the First Amendment for elected officials. There are well-worn exceptions to freedom of speech in the criminal law. Although high crimes and misdemeanors is not a criminal law concept, I would hold those seeking Trump’s impeachment to a. criminal law standard. I’d let the trial proceed on this claim, as the proof is a matter of sufficiency of the evidence. Based on what I’ve seen thus far, Trump engaged in nothing more than intemperate speech. And abstract advocacy of violence. Unless something extraordinary arises at trial, I would vote to acquit after close of the evidence.
Fourth, the claim that proceedings are unconstitutional in that the Chief Justice does not intend to preside is unpersuasive. The text of the Constitution makes clear that the chief is to preside only when the president is on trial. The president is not. I would attach no weight to this claim.
Finally, the claim that multiple acts are charged in one count, and therefore the burden of proof and persuasion has been diluted by not requiring unanimity as to which acts support conviction is a good argument in criminal court. This isn’t criminal court. I’d deny this out of hand.
Having said all this, I’d urge my colleagues to dismiss the action without trial. It would be elegant to hold that vote first, but I doubt those wanting a trial will do so. Better the show trial, even if the show fails, in the end, to get the promised result. As of this writing. President Biden has signed more than 40 executive orders changing the course of federal policy; arguably changing the law that will be enforced around the United States. This is a shocking turn of events. The rate of such orders dwarfs anything any other president in recent memory has done. The separation of powers matters. I would urge fellow Senate members to be mindful of the government we now have, not the government we recently replaced.
Odds are we will have a trial. It’s also likely we will also have an acquittal.
I’m not troubled by that insofar as it would be a victory for the First Amendment and freedom of speech. The country is trending toward a sort of unctuous intolerance for divergent views and a precious estimation of what speech can and cannot be tolerated. If there is a case to be made that the former president broke the law on January 6, 2021, or in the days leading up to it, empanel a grand jury, and bring charges under well-worn paths involving the core value of speech.
I have no stomach for tinkering with the architecture supporting freedom of speech in the midst of a partisan witch hunt. Let’s not cancel the First Amendment.