John Eidsmoe
Lt. Colonel, USAF(Ret.)
Chaplain (Colonel Ret.), Mississippi State Guard
Professor Oak Brook College of Law & Govt Policy
Pastor, Association of Free Lutheran Congregations
Senior Counsel & Resident Scholar, Foundation for Moral Law
To: Members of the United States Senate February 1, 2021
Washington, D.C.
Re: Proposal to Impeach President Donald J. Trump
Greetings:
As an attorney and law professor who has practiced and taught Constitutional Law for many decades, I strongly oppose the proposal to impeach and convict President Donald J. Trump and bar him from holding public office, for the following reasons:
1. It is utterly without factual basis.
The House of Representatives, in voting to impeach President Trump, did not call a single witness to testify. Had they called witnesses, they would have learned that President Trump neither said nor did anything that could be considered incitement to riot. His words at the rally were:
“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
As the Supreme Court held in Brandenburg v. Ohio, 395 U.S. 444 (1969), government cannot punish allegedly inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Clearly, calling on people to “peacefully and patriotically make [their] voices heard” is not “directed to inciting or producing imminent lawless action.” In fact, when President Trump learned that people entered the Capitol, he immediately told all of his supporters to “go home.”
2. It is a hasty rush to judgment.
As George Washington University Law Professor Jonathan Turley said on January 11, 2021, impeachment is to be a careful, considered, deliberate action, undertaken only after full deliberation and examination of the evidence, not a hasty rush to judgment. At a minimum, before taking such drastic action, the House needed to consider:
* Whether President Trump believed in good faith that there were irregularities and illegal actions that affected the outcome of the November 3, 2021 election. Whether or not a majority of Congress agrees that such irregularities and illegal actions occurred, the Foundation contends that enough evidence exists so that a reasonable person could in good faith believe the election officials in several states illegally and unconstitutionally usurped powers delegated by the Constitution to state legislatures to determine the manner of choosing electors, and that irregularities and illegal actions occurred. See, for example, the Petition for Writ of Certiorari (267 pages including attachments) filed by Petitioner in Donald J. Trump for President, Inc., v. Boockvar, et al., No. 20-845 (currently pending in the United States Supreme Court).
* Whether those who entered the Capitol were a separate group of extremists or whether they were representative of those who gathered at the Stop the Steal Rally.
* Whether those who entered the Capitol intended to actually seize control of the Government.
* What, if any, role persons associated with Antifa played in inciting and participating in the entry to the Capitol.
* Whether those who entered the Capitol left the Stop the Steal Rally early, or even attended it at all, and whether they even heard the President’s speech.
* Whether the barricades to the Capitol were moved aside, and if so, by whom, and why.
* Whether those who entered the Capitol, or some of them, believed that because the barricades were set aside they were free to legally enter the Capitol
* What role, if any, the Capitol police and other government officials played in either preventing or facilitating the break-in.
Those who entered the Capitol have not yet been tried, convicted, or sentenced. Some have not yet been charged. Investigations are continuing. It is therefore premature and ill-advised to impeach and convict the President for whatever role he may have played in these events.
And please consider this: Can anyone seriously believe that if the President had intended to stage a coup, he would have staged such a sloppy, disorganized action as occurred January 6?
3. It is an exercise in futility.
The President’s term ended January 20, 2021 and, on that date, a new President was inaugurated. Even if the House had jurisdiction to bring an impeachment on January 13, the action was clearly an exercise in futility because President Trump had only one week left of his term of office.
Under Article I Section 3 of the Constitution,
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
The Senate has power to “try” impeachments. That means a trial, in which both sides have ample time to prepare and present their cases and in which the Senators deliberate on their decision.
Furthermore, any action (punishment) the Senate may decide to impose can take place only after a conviction, and Sec. 3 provides that “no Person shall be convicted without the Concurrence of two thirds of the Members present.”
It is doubtful whether the Senate has jurisdiction to proceed with a trial if the impeached person no longer holds office. On July 7, 1797, the House impeached U.S. Senator William Blount of Tennessee. But before the Senate tried the impeachment, the Senate had expelled him pursuant to Article I Sec. 5 and therefore dismissed the impeachment for want of jurisdiction. Because this occurred only eight years after the Constitution was ratified, it may have special significance in determining the Framers’ intent. Nearly always, impeachment proceedings have been dismissed when the person left public office (Judge Mark H. Delahay in 1873, Judge Edward H. Durrell in 1874, Judge George W. English in 1926, Judge Samuel B. Kent in 2009).
There is one partial exception. In 1876, Secretary of War William Belknap handed in his resignation two hours before the House was to vote on his impeachment. Reasoning that he should not be allowed to evade impeachment by resigning, the House voted to impeach. In the Senate, however, the vote to convict fell short of two-thirds, so he was acquitted. Clearly, this case is very different from that of President Trump. Secretary Belknap resigned to avoid impeachment; President Trump left office because his term had been completed.
Furthermore, the examples cited above are only examples of what Congress has done in the past. None of these cases, and no other cases so far as I am aware, were ever considered by a federal court, let alone the Supreme Court. Never has the Supreme Court upheld an impeachment proceeding after the person left office.
What is to be accomplished by this action? Article I Section 3 continues:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Clearly, President Trump cannot be removed from office, because he has already left office. The only possible goal of this action, then, is to bar him from holding office in the future. It is doubtful whether this can be done.
Throughout our history, only three persons –West Humphreys in 1862, Robert Archibald in 1913, and Thomas Porteous, Jr. in 2010 — have been barred from holding public office. In two of these, the action was taken by a two-thirds vote of the Senate. In one case, that of Judge Robert Archibald, the Judge was disqualified from future office by a vote of 39-35. However, Judge Archibald never challenged this action in court, so we have no ruling from the Supreme Court that this could be done by less than a two-thirds majority.
Also, in all three of these cases, the Senate took the disqualification action only after convicting the person by a two-thirds vote. In other words, there is no way the Senate could consider a disqualification or any other punishment, without first voting to convict by two-thirds.
Furthermore, all three of these cases involved federal judges. Because federal judges hold office “during good behaviour,” they are held to a different standard from other federal officials. Other federal officials may be impeached for “treason, bribery, or other high crimes and misdemeanors.” Federal judges may be impeached for these reasons, but in addition they can be impeached for a breach of “good behaviour.”
And if Presidents and other federal officials can be impeached after they have left office, there is nothing to prevent the impeachment of George Washington for not freeing his slaves until his death, or of Thomas Jefferson for repeatedly mentioning God in the Declaration of Independence, or James Madison for inserting the electoral college into the Constitution.
4. It will only divide the nation.
President-elect Biden says his goal is to bring this nation together and heal its divisions. An impeachment effort, especially if pushed through by steamroller tactics, will only divide the nation further. And it will lead to retaliation, as future Republican-controlled Congresses will impeach and remove Democratic office-holders on the flimsiest pretense of reasons.
A few Republicans have indicated they favor disqualifying President Trump from holding office because they fear he will divide the Party or possibly even lead a third-party effort. Suffice it to say that this is not a valid reason to impeach a President; it does not constitute “Treason, Bribery, or other High Crimes and Misdemeanors.”
5. It is the height of hypocrisy.
Defenders of the President were quick to condemn the disorder and violence that took place in the Capitol January 6. But the President’s opponents, while they scream for vengeance now, were largely silent and sometimes even supportive of the murders, assaults, rioting, looting, burning, and other violence that took place on an almost daily basis throughout the summer of 2020.
Furthermore, those who are now pressing for impeachment and disqualification from future office, say they are doing so to defend America’s “democracy.” But if they deny the President the right to run for future office, they also deny the American people the right to vote for Donald J. Trump should they choose to do so. Claiming to champion democracy by prohibiting people from voting for the candidate of their choice is the height of hypocrisy.
For all of these reasons, I urge members of the Senate to reject this ill-conceived and vengeful article of impeachment.
Thank you for your consideration.
Respectfully submitted,
/s/
John Eidsmoe
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