Should Donald Trump skip his impeachment trial in Senate?

In a matter of days this country will face an extraordinary Senate trial. The Senate not only will try a president for a second time but will do so after he has left office. Kamala Harris has assured us the Senate can “multitask” to deal with an impeachment, a new administration, and a pandemic. But the issue is if this is a task of the Constitution and, for soon to be citizen Donald Trump, the best defense could be no defense at all.

In fairness, people on both sides are having a hard time with this novel impeachment. While I have said that I do not wish to serve as counsel to the president, I have also spoken to members of Congress and the White House on the legal and historical background for a trial. From a strategic perspective, I believe Trump would be wise to skip a trial.

Avoiding a fight could be the most difficult decision of all because Trump has obvious defenses. He was denied due process when the House held an unprecedented “snap impeachment” this month without a hearing or an investigation, even though a trial would likely not occur right away. Even a hearing limited to one day would have allowed evidence to be discussed and to seek a formal response from Trump.

The impeachment article is poorly crafted and poorly conceived. It is built around assertions that the remarks Trump made to supporters earlier this month was an “incitement to insurrection.” His remarks did raise potential impeachable grounds. I condemned his speech as he gave it and opposed his challenge of the electoral votes from the outset last fall. However, as I wrote previously, it would have been far better to censure him for it in a bipartisan resolution in both chambers of Congress.

Impeachment can be based on noncriminal grounds, but his remarks alone did not amount to criminal incitement. Absent direct evidence of intent, a criminal charge would likely collapse in a trial or on appeal on First Amendment grounds. Trump called for his supporters “to peacefully and patriotically make your voices heard” and “fight like hell” to challenge the election at the Capitol, and to remind unsupportive Republicans that their actions would not be forgotten. It was a reckless address but, in a court of law, it would constitute protected speech.

Despite the strength of such defenses, the president must first decide whether he wants to sit for trial at all. He can argue that a private citizen cannot be impeached and the Senate cannot remove a person from office who has already left. The Constitution declares the specific purpose of an impeachment trial is whether “the president, vice president, and all civil officers of the United States shall be removed from office.” It is true the Senate can later add a disbarment from holding federal office but only after removal is decided as it is an issue of the penalty.

The Constitution refers to a present tense status of “the president.” That status is key to other provisions bestowing official powers and privileges, which do not remain after leaving office. No one would argue that Trump could continue to exercise those powers once Joe Biden is sworn in. Yet a Senate trial insists that, while Trump has no powers, he remains subject to penalties tied to the office. Further, the purpose of the impeachment trial is whether a president is to be removed. The only person subject to such a trial would be the sitting president who is now Biden.

This issue has been debated since the first impeachment in 1797, when Senator William Blount of Tennessee faced allegations of conspiring to help Great Britain seize what is now Louisiana. He was expelled from the Senate before being impeached, so he insisted he was not subject to a trial and refused to appear. The Senate dismissed the case ten years after the ratification of the Constitution, with most of the Framers still alive and some also serving in Congress. The second case fared little better in 1876, when former Secretary of War William Belknap was tried even though he resigned before being impeached. Almost half the Senate voted that they did not have jurisdiction, and the charges against Belknap were dropped, in part thanks to doubts over the legitimacy of the trial.

The absence of a defendant or defense counsel might not be the only curious element in the trial of Trump. It is unclear if Chief Justice John Roberts would be called upon to preside. The Constitution states that when the president is tried, the chief justice presides, but the president will be Biden. The failure to put on a defense is not an admission of guilt. The Senate has a duty to resolve whether there is a valid impeachment trial to be held and whether the rule has been satisfied.

If the Senate does not dismiss the case with a threshold vote, Trump can treat the trial as an act outside of the Constitution because he is no longer subject to removal. If the Senate were to convict, he would have standing to challenge any disbarment from future federal offices. Trump could well prevail and the Senate would have created a precedent against itself with the first ever judicial reversal of an impeachment verdict.

Courts maintain that impeachments are left to Congress. However, this is different. This is an issue of whether a private citizen can be subjected to a trial committed to the removal of office holders. Impeachments go to the status of office holders, while indictments go to the status of individuals. If prosecutors believe Trump incited insurrection, they should charge him. But the Senate must decide if it wants to hold a trial based on legal fiction with a vote to remove someone who is no longer in office.

Jonathan Turley is the Shapiro Professor of Public Interest Law with George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as an expert for the impeachment hearings of Bill Clinton and Donald Trump. Follow him with Twitter @JonathanTurley.