February 21, 2021
The acquittal was bizarre and swift, all based on unsound arguments by the defense but, the GOP Senate voted not guilty despite overwhelming evidence presented by the impeachment managers. The vote count was 57 to 43 with 7 Republicans joining Democrats to convict. However, the constitutional requirement of 2/3 of the Senate for removal and banishment from future office, meant the man responsible for the first and worst insurrection against the U.S. government gets to walk.
With the understanding that impeachment is not a legal process but a political one, the goal here is not to relitigate the troubled decision but to reevaluate the defense strategy and point to the flaws in its argument that the impeachment is unconstitutional. The defense premise for unconstitutionality of the process, was based on the followings: Mootness, the First Amendment and Due Process of the law.
Mootness occurs when there is no dispute or question of law to answer. The doctrine serves primarily the purpose of assuring that Federal Courts are presented with disputes they are capable of resolving. The notion that when there is no controversy the case is moot and therefore, lacks jurisdiction. A case may be rendered moot because of a change in the status of the parties or in law or because of an act of one of the parties that dissolves the controversy.
Trump’s defense argument is that because he’s no longer president, there exists no case or controversy, therefore, the Senate trial is moot and lacks jurisdiction.
To better understand, imagine the following scenario: An employer walks into his office and finds his employee about to steal $5,000 from the safe. On discovery, the employee decides to abandon his plan leaving the money in the safe. If the employer sues for theft, the case can be thrown out for mootness because no theft occurred. The employee is not criminally liable for theft however, the employer may decide to terminate him in good faith for attempting to steal his money.
Now, assume the employee completed the crime and got away with the $5,000 in the safe. If the employer terminates him and then decides to sue him later for theft of the $5,000, the employee cannot claim the case is moot because he no longer works for the employer. The fact is, there exists a controversy, a theft occurred and therefore, there is a case in law.
Likewise, in Trump’s situation a crime occurred, while he was President. He incited a mob and encouraged his followers to invade the capitol in an attempt to overturn an election he lost. The mob listened to him and followed up with an insurrection against the United States Congress, making his argument that because he’s no longer President the trial is moot a flawed one.
The founders of the constitution did not give Congress the power of impeachment with a January exemption in mind. Doing so would make it possible for a future president to engage in crimes in his/her last days in office and then, claim Congress lacks the jurisdiction to prosecute once out of power. Those members of Congress who voted to acquit, did not base their decision on constitutionality or mootness, their vote was politically motivated.
Another misguided argument the defense made was based on the First Amendment, the belief that Trump’s address to the mob on January 6, is free speech and therefore, protected by the First Amendment.
The market place of ideas notion under the free speech doctrine, dates back to the English Constitution, the principle that the state must allow dialogue and ideas to flow no matter how distasteful. However, when social order is threatened the state may intervene to curb such speech. Though the First Amendment protects freedom of speech, such freedom is not absolute.
You can’t yell “fire” in a crowded theater as a joke and then claim First Amendment protection if as a result of your action chaos ensued leading to injuries. Such action will have no protection under the free speech doctrine.
There are categories of speech not given refuge under the First Amendment: libel, defamation, fraud, divulgence of state secret and obscenity have no protection. Also unprotected are communications such as hate speech, speech that “incites violence” creating social disorder and such speech as pornography. Otherwise, the market place of idea is a well-accepted principle in the United States.
The fact is on January 6, Trump spoke and incited a mob. They listened to him, followed his order to invade the capitol and as a result, there was total disorder in Washington leading to an attempted overthrow of the U.S. government. For months before the elections, Trump told his followers the only way he’d lose is if the election is rigged. Believing his false rhetoric of election fraud, the mob forcefully entered the Capitol to stop the certification of President Biden as the winner of the 2020 elections. Trump’s speech before the insurrection did not qualify as free speech because it was designed to incite his mob into a state of violence and violence occurred on January 6.
The defense’ final argument rests on Due Process, the idea that the impeachment denied Trump his legal rights to fair trial.
Simply put, Due Process is the right of the defendant to be heard. It is a legal requirement that the state must afford a person the legal rights owed under the law. The conception that Trump was denied those rights is a fallacy. The House followed every rule in the Constitution before beginning the impeachment process and gave Trump the opportunity to testify which he refused.
Trump’s attorneys want specific sets of rights under the 5th and the 14thAmendments that do not apply in impeachment proceedings. During the trial his legal team met with Republican Senators who were serving as jurors and expected to be independent something that doesn’t happen in a normal court trial.
Just like in 2019 impeachment trial in which he failed to testify, blocked testimony by his officials and refused to provide documents and tax information required for the Mueller probe, Trump ignored every opportunity to speak before Congress when the House sent him a letter to appear and yet, his defense claims lack of due process.
The constitutional arguments put forward by the defense is faulty and the decision of 43 Republican senators that voted to acquit was motivated by the quest for power. Fear of the Trump base and desperation for reelection led them to vote for acquittal. To justify their actions, they invoked the Constitution as a front for their dirty deeds.
Adeyemi Oshunrinade is an expert in law, foreign relations and the United Nations. He is the author of ‘Wills Law and Contests,’ Constitutional Law-First Amendment ‘Criminal Law-Homicide’ and ‘SAVING LOVE’ available on Amazon. Follow on Twitter @san0670.