GERBER: The Senate Should Not Convict Citizen Trump

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Scott Gerber Contributor
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Editor’s note: We endeavor to bring you the top voices on current events representing a range of perspectives. Below is a column arguing that the Senate should not convict former President Donald Trump. You can read a counterpoint here, where Steve Calabresi, a Northwestern Law Professor and former Reagan Administration political appointee, argues that Trump should be convicted by the Senate.

President Trump should not have insisted on multiple occasions after November 3, 2020 that the election was “stolen” from him; he should not have told Georgia’s secretary of state to “find” enough votes to change the outcome; he should not have pressured Vice President Mike Pence to “send back” the election to the states for recertification; and he should not have encouraged the mob at the Jan. 6, 2021 rally to protest the election by “marching ” to the U.S. Capitol.

But it would be unconstitutional for the Senate to convict Trump. Here are five reasons why.

First, Donald Trump is now a private citizen, which means there is no federal office from which he can be removed. I made this point in a January 15, 2021 op-ed in the Daily Caller. Others, including former U.S. Court of Appeals Judge Michael Luttig and influential constitutional law professors Alan Dershowitz of Harvard, Richard Epstein of NYU, Jonathan Turley of George Washington University, and John Yoo of Berkeley, have made the point too.

Second, barring Trump from ever again holding federal office, which is what the Democrats are most committed to trying to do, would deprive the American people of the right to vote for or against the nation’s 45th president. The American electorate are not wards of the government. The Senate should not be making the choice for us. We can and should be trusted to make the right decision. Trump lost the 2020 presidential election — yes, he lost it — even though the economy was doing well and the nation was at peace. He would not win the 2024 election with his historically low approval rating and after being impeached twice by the House.

Third, the House’s second impeachment of Trump violated due process: the proceeding was rushed, no evidence was heard and Trump was not represented by counsel. As I mentioned at the outset, Trump should not have done what he did, but due process is at the heart of the American conception of justice and even an unpopular president is entitled to it. Not only should Trump not be tried in the Senate for a second time, but the Article of Impeachment passed by the House on January 13, 2021 should be dismissed.

Fourth, Chief Justice John Roberts has refused to preside over Trump’s second Senate trial, which means the most senior Democrat in the Senate, Patrick Leahy of Vermont, will both preside over Trump’s trial and vote as a member of the jury with the other senators. A conflict of interest as blatant as that is an additional violation of Trump’s constitutional right to due process. Moreover, most — perhaps all — of the senators/jurors are witnesses to some aspects of the Capitol riot that is at the center of the trial. Witnesses and participants cannot serve as jurors in any proceeding that hopes to comply with due process.

Fifth, precedent is important in constitutional law, and the Senate will set a dangerous one if an unpopular former president is convicted and barred from holding federal office in the future.

Who is next? Hillary Clinton? She is an unpopular former secretary of state who is alleged to have committed a number of bad acts while she was in office — inaction before and indifference after the attacks on U.S. government facilities in Benghazi, Libya, that left four Americans dead; using a private email server for official public communications rather than an official State Department email account maintained on secure federal servers; etc. — and she might want to run for president again. After all, she is five years younger than President Biden, she announced that she was running for president in 2016 before then-Vice President Biden had decided not to run and she is extremely ambitious.

Or how about former President Obama? Republicans have accused him of all manner of misconduct — the title of a 2015 book about Obama is “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law” — and even though the 22nd Amendment prohibits a two-term president such as Obama from serving again as president, President Biden was Obama’s vice president, the Democrats control the Senate and Obama could therefore be nominated and confirmed to a lifetime seat on the U.S. Supreme Court. And a Supreme Court justiceship is unquestionably the sort of “Office of honor, Trust, or Profit under the United States” from which the Senate trial could forever bar Trump.

Bluntly put, Trump should be censured by Congress and, if he ever tries to run again for president, voted against by the American people. But he should not be tried in the Senate, let alone convicted and barred from running for federal office. No matter how much some people are demanding a Senate trial, the Constitution forbids it.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include, most recently, “The Art of the Law: A Novel.”