Impeachment Versus Indictment

Former President Trump is an angry, vindictive, ignorant man who cares about no one but himself. He thinks himself strong, tough, and above the law. He likes violence. He lies relentlessly. When he gets away with something, he pushes further. Consider (count them!) six bankruptcies, multiple sexual assault cases, allegations of tax and insurance fraud, obstruction of justice — and impeachment. The first impeachment simply emboldened him. He reveled in the power of the Presidency to divert tax money to himself and his family, reward his friends, punish anyone who crossed him. In the last few months he attempted election fraud a dozen times, ending with the violent assault on Congress January 6.

Trump’s role models are Vladimir Putin and President Xi, whose compliant legislatures overturned term limits to make them lifetime rulers. Joe Biden may be president now, but Trump will try to recover the office he insists belongs to him and his family, until he dies.

He is the worst threat to American democracy since the Civil War: despite zero evidence, he has convinced 30% of Americans, some 60% of Republicans, that the 2020 presidential election was stolen. But what’s the point of elections if the loser can overturn a free and fair election simply because he lost?

Trump is dangerous. He must never be allowed near the Oval Office again.

A second impeachment, even with conviction by the Senate (now unlikely), and a vote to bar him from office (even more unlikely), will no more stop him than the first one did.

Alexander Hamilton anticipated this moment: “The hope of impunity, is a strong incitement to sedition: the dread of punishment, a proportionably strong discouragement to it.”

Federal criminal law

On January 6, Trump committed a serious crime, in full view of the public, that carries a prison term of up to twenty years.

18 U.S.Code Section 2385 states: “Whoever knowingly or willfully advocates, abets or advises…the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States…by force or violence;…or

“Whoever organizes, or helps or attempts to organize…any group, or assembly of persons who teach, advocate or encourage the overthrow or destruction of any such government by force or violence…

“Shall be fined under this title or be imprisoned not more than twenty years, or both, and shall ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.”

Conspiracy with others to do this is a separate offense.

Defendants have been convicted under this law, but the First Amendment — much favored by today’s conservative Supreme Court — is a strong defense. It has never, however, been absolute. For decades, Federal courts held that defendants could be convicted for speech that presented a “clear and present danger”. In 1969, in Brandenburg v. Ohio, the Supreme Court raised the bar for conviction. A defendant could be convicted only for speech which is “directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.”

If Trump’s speech on Jan 6, particularly when viewed in the context of what went before and what happened after, did not meet both tests, then the test is a dead letter — the First Amendment protects any speech.

The prosecutors will lay out events in exquisite detail, but in brief, Trump summoned his supporters to a “wild!” rally in D.C. on January 6, 2021, the designated date for the Senate and the House to formally accept the electoral votes certified by the States: this is the last event, entirely ceremonial, before the inauguration. Everyone, lawyer and lay alike, agree, that if the election has been free and fair, with a clear result, the Constitution does not authorize Congress to alter the State delegations or their votes. Everyone, that is, except Trump.

On January 6th, thousands of supporters, some armed, gather at the White House. Trump insists again that the presidential election was ‘stolen’ from him, bringing the crowd to fever pitch. He urges the crowd to march on the Capitol to ‘take back the country’: “[Y]ou’ll never take back the country with weakness”, he shouts. “You have to show strength, and you have to be strong. We fight. We fight like hell! And if you don’t fight like hell, you’re not going to have a country anymore.” And more of the same. According to Yahoo News, the crowd shouts back “storm the Capitol!” “take the Capitol!” “fight like hell!”. Per Politifact, Trump used the word ‘peaceful’ just once. Rudy Giuliani adds helpfully: “Trial by combat!”

If you have any doubt, you can watch the entire event online.

This was not a football rally where supporters urge their team to “fight, fight, fight!”, or even a typical Trump political rally, where everyone cheers wildly, then goes home.

No. This Trump rally was totally different.

What hundreds in this crowd understood was that Trump told them to march to the Capitol to, at a minimum, intimidate weak Republicans and Mike Pence into breaking the law. As the speech neared its end, the crowd started towards the Capitol. Inside the Capitol, rioters told reporters they were following Trump’s orders. Others yelled “Hang Mike Pence!” (they set up a mock(?) gallows outside), or sought Nancy Pelosi to kill or kidnap her. At least two brought zip ties. They were pleased and proud of their actions, smiling, talking to reporters, taking selfies. After all, Trump told them that they were patriots, not criminals.

After his speech, Trump retires to the White House to watch the result on TV. The rioters breach the Capitol at 1:30 pm. At about 2:30 pm, then again at 3:15 pm, Trump tweets ineffective reminders to the crowd to be peaceful, but shows no concern — or even surprise — with what he, and the rest of America, see and hear. Not until 4:17 does Trump tell the rioters “I know how you feel,” but “go home, with love and in peace.” “We love you, you are very special.” Senator Ben Sasse (R. Nebraska) says White House insiders told him that the President was “delighted”. Indeed, the attack had been an impressive demonstration of his power.

Despite urgent pleas from his staff, Trump did not condemn the attack on the Capitol until the evening of the following day, January 7.

It all suggests that Trump intended to incite violence to overturn a lawful election, and caused a violent insurrection, even if he did not achieve his ultimate goal of overturning the election. We all saw it.

Why a criminal trial might succeed where impeachment failed

In over a century, we have had only four Presidential impeachments (if you count Nixon), but there have been hundreds, probably thousands, of criminal trials.

The impeachment process is still being worked out. We do know that it is highly political. Politicians consider not merely what the President did or didn’t do, but also their own situations vs-a-vs their colleagues, their party, the nation as a whole, and probably other things.

And the result is to remove an unsuitable person from office, and stop him from running again. As with the Emoluments Clause, the Constitution specifies no enforcement mechanism.

By contrast, a U.S. criminal is highly structured: rules, established over centuries, cover all the details of a criminal trial. The trial is a the application of the law, as interpreted by the judge, to the facts as found by the jury reviewing the evidence according to the instructions of the judge, which are reviewed by the parties but also carefully constrained by the law. Each participant’s role is prescribed. The audience has no role whatsoever, and may be excluded if anyone causes a disturbance. Federal judges, as Trump has reason to know, are appointed for life. A trial is designed to be non-partisan — if political considerations are introduced, the verdict may be overturned, or the whole trial invalidated. Lying under oath about a material issue in a trial may be perjury, a separate criminal offense.

A trial is the ultimate expression of “rule of law” in this country.

In particular, Trump will not be allowed to say whatever he wants, whenever he wants. He may decline to testify altogether, but if he decides to go ahead, he can only answer questions from his lawyer, then questions from the prosecutor, all under oath. It is all or nothing, he does not get to pick and choose which questions to answer. He cannot bully anyone; a wise defendant will respect the lawyers and the judge. The judge may also issue a “gag order” limiting who can speak or what can be said outside the courtroom.

A sometimes overlooked advantage of a trial, even a celebrity trial, is that it can be slow, even boring, with time out for bench conferences, discussions of obscure procedural points, breaks where the jury is sent out, conferences in chambers. Real-world trials are not made for television, Trump’s favorite medium (besides Twitter).

Finally, if a defendant is convicted, there is generally a punishment, enforceable in court. Even if Trump gets off with a large fine and a suspended sentence of, say, ten years, if he commits another crime or otherwise violates the terms of his probation, the judge can revoke the suspension and send him to prison. Of course he can appeal (and there’s no telling what ‘his’ Supreme Court would do), but the downside of new bad behavior might give even Trump pause: he would have to appeal from his prison cell.

As soon as an indictment is handed down, Trump will insist it is completely phony, a trumped up (sorry) case against a political opponent. Why? Because that’s what he wanted to do (remember ‘Lock her up!’) just like Putin and Xi. However, jailing one’s political opponents is not allowed in this country, unless the government has a good case. For example, most impartial attorneys believe Attorney General Barr crossed the line many times, when, for example, he tried to withdraw the indictment of Michael Flynn after Flynn pleaded guilty twice. (Trump nearly got away with trashing important norms again.) But even Barr refused Trump’s order to investigate unsubstantiated allegations of widespread voter fraud, or to appoint a special prosecutor to investigate Hunter Biden.

For centuries, U.S. has maintained the independence of Department of Justice from the White House: the separation is integral to the rule of law. There have been slips, but these have generated reforms: a Federal law against nepotism in 1967 (after John Kennedy appointed his brother Attorney General); reforms by AG Edward Levi (under President Ford) and AG Griffin Bell (President Carter) after Watergate.

President Biden, who understands the significance of such norms, will be scrupulous about respecting them, particularly in cases which might appear political (the investigation of Hunter Biden’s taxes, for instance); Judge Merrick Garland, Biden’s pick for Attorney General, who has been a Federal appellate judge for 25 years, will insist on no less. Whatever Trump says.

Fairness

Law enforcement officials are now rounding up and charging everyone they can find who broke into the Capitol that day. (If the National Guard had been alerted, and surrounded the Capitol within an hour of the assault, they could have arrested rioters as they exited the building.) It appears there were militia groups who expected violence, given the President’s invitation and his fiery speech — they made plans and came prepared, opening them up to serious conspiracy charges. Others were just foot soldiers, part of the crowd. At least one, the man with the horns, furry headdress and bare chest — currently in jail — felt betrayed when Trump failed to pardon him This ‘QANON shaman’ offered to testify against the former President. Surely there are others.

Isn’t it unfair to punish the followers, and let the leader who urged them on go scot free? (For Trump, impeachment is not punishment.)

Food for thought

In Western tradition, the ancient Greeks are thought to have invented democracy, and did give gave it its name. They also identified its particular soft underbelly: the demagogue. A brash, vulgar orator who appeals to people’s passions, with extravagant promises and fierce attacks on his opponents, to gain power. The Founders, familiar with Classical literature recognized the danger of a demagogue and warned us: in “Federalist Number 1”, Hamilton explained: “[A] dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people…History will teach us that…of those people who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

The Founders designed checks and balances to defeat such a person — Trump has come closer to breaking through than anyone since 1776.

A criminal trial would teach Trump, and remind the nation, that in the U.S. no one is above the law.

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Caroline Poplin, M.D., J.D.

Caroline Poplin, M.D., J.D.

Poplin graduated from Yale Law School and practiced law with the FDA and the EPA. Currently Of Counsel & Medical Director at Guttman, Buschner, & Brooks PLLC.