Long before Tuesday’s opening of former president Donald Trump’s Senate impeachment trial, Senate Republicans largely coalesced around a strategy to acquit him: Rely on the constitutional argument — however specious — that a president cannot be convicted in the Senate if he’s already left office. Trump’s recently reshuffled legal team obliged them in their avoidance of holding Trump accountable by relying heavily on this defense in their final pre-trial filing Monday.
But that claim is not supported by the Constitution, historical precedent, or common sense. The American public must see Republicans’ embrace of this fallacy for what it is: a ploy by GOP members too afraid of the political fallout if they uphold their constitutional duty to convict Trump based on a clear case laid out by impeachment managers that he incited an insurrection.
The benefit Republicans may enjoy by avoiding the wrath of Trump and his most ardent supporters in no way justifies the permanent damage that would be inflicted on the nation’s democratic systems and the impeachment power itself if a former president is allowed to get away with impeachable conduct just because it occurred — as attempts to overturn an election often do — at the close of a term.
Legal experts, including those embraced in conservative circles, have already thrown cold water on the dubious constitutional claim that former presidents can’t face Senate impeachment trials.
In a Wall Street Journal op-ed this week, Chuck Cooper, a conservative attorney who has represented prominent Republicans, including John Ashcroft, Jeff Sessions, and John Bolton, pointed out that the very language of the Constitution undercuts Trump’s defense.
That language allows members of the Senate, after removing an official through impeachment, to take the optional step of barring him or her from holding office again.
“Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders,” Cooper reasoned.
Another big clue that Trump’s defense doesn’t hold water is the pushback his attorneys received from even the authorities cited in its brief.
The attorneys “suggest that I was endorsing an argument when what I actually did was note that argument — and reject it,” Kalt tweeted. “They didn’t have to be disingenuous and misleading like this.”
But lying is what got Trump here. As the impeachment managers point out in their brief about the false claims of a stolen election Trump used to stoke his supporters’ anger: “He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the nation’s continued existence.” Trump’s culpability for the insurrection started long before Jan. 6, despite what his lawyers claim.
Republicans’ effort to sidestep this real crux of the impeachment case only underscores how compelling it is likely to be. In their brief, impeachment managers paint a clear picture of how Trump, for months after the election, unleashed a torrent of lies about election fraud, invited supporters to Washington for a “wild” Jan. 6 rally to take place as lawmakers counted certified electoral votes, and then sicced those rally-goers on the US Capitol building — to deadly effect.
The managers, each of whom — like the senators themselves — were witness to the insurrectionists who breached the building and put the lawmakers and others’ lives in danger, also dispel Trump’s attorneys’ defense that such actions enjoy First Amendment protection. Just as a person is not given constitutional immunity for falsely shouting “fire” in a crowded theatre, a president cannot use the First Amendment as a shield for engaging in a months-long falsehood-fueled campaign (which included pressuring Georgia election officials to illegally “find” enough votes to overcome his loss in that state) to undermine the democratic process, nullify the will of American voters, and autocratically use the power of his office to maintain that power.
And that is the point Americans must keep front of mind if Republicans in the Senate reject the facts and the plain text of the Constitution in order to let Trump off the hook: that those senators are choosing political allegiance to Trump over the principles of democracy itself.
They would be violating the very oath that each of them took to “defend the Constitution of the United States against all enemies, foreign and domestic” and “bear true faith and allegiance to the same.” Voters, when it’s time for each of these lawmakers to seek reelection, should remember to send them a clear message that neither their political ambition nor Trump’s bully pulpit is bigger than the rule of law.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.