Yes, Trump should be convicted

Posted January 2021

By Tristan Hansen

Staff Editor

Given recent events, the House of Representatives was justified in impeaching Trump, and the Senate should promptly vote to convict.

Before doing proper research on this topic, I was prepared to pen an editorial fully and wholeheartedly defending Trump from any further impeachment proceedings. Although Trump’s actions and behavior in recent months has been profoundly irresponsible and downright dangerous to our country, none of it has necessarily been illegal. The article of impeachment recently passed in the House accuses Trump of “incitement of insurrection,” but from a legal perspective Trump has not committed this crime, and every statement he’s made thus far has been soundly protected by the First Amendment—I thought. And I was correct in thinking so.

Brandenburg v Ohio was a landmark Supreme Court case in which the modern standard for incitement, one of the few exceptions to freedom of speech the Supreme Court has recognized, was established. Clarence Brandenburg was a KKK leader in rural Ohio who was recorded, on tape, advocating for what he called “revengeance” against African Americans and Jews and proposing a march on Washington to occur later that year. He was then charged under Ohio’s criminal syndication law, a law created during the first red scare, which prohibited "advocating ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." His defense argued that this law itself was unconstitutional, and the case rose to the Supreme Court, who ultimately sided with Brandenburg and unanimously chose to strike down the law. They stated that speech which more generally advocated the use of violence to achieve certain political ends was protected under the First Amendment, and that it could only enter into illegal territory “when advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This is known as the imminent danger test.

Operating under this standard, it’s fairly clear that Trump was not, in a legal sense, guilty of the crime of incitement. At no point did he directly and explicitly incite “imminent lawless action.” He repeatedly urged his supporters to demonstrate peacefully, asking only that they march to the Capitol and “peacefully and patriotically make [their] voices heard.” To suggest that Trump is guilty, under law, of incitement of insurrection requires mental gymnastics the likes of which the world has perhaps never seen.

However, what needs to be understood, and what I didn’t understand until very recently, is that impeachment doesn’t necessarily require an actual crime to have been committed. It’s easy to interpret the “high crimes and misdemeanors'' phrase found in the constitution at face value and assume that impeachment requires the official impeached to have committed, well, a crime. But a historical analysis behind the true meaning of this phrase indicates that’s not the case.

“High crimes and misdemeanors” is a phrase borrowed from England’s system of impeachment (yes, England has a system of impeachment that predates ours), in which Parliament would remove a king or queen’s ministers for having committed the aforementioned high crimes and misdemeanors. But this didn’t necessarily mean actual, indictable criminal activity, instead more broadly applying to what was perceived misconduct in or misuse of public office, or behavior generally deemed incompatible with the expectations of said office. The term “high crimes” didn’t necessarily refer to felonies or other such crimes, but rather offenses committed by those in high positions of power.

For example, during the impeachment trial of Warren Hastings, governor general of Bengal, which happened around the time of the Constitutional Convention, Edmund Burke, the primary prosecutor, stated that Hastings’ offenses “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”

There’s no reason to believe the founding fathers’ conception of the “high crimes and misdemeanors” phrase differed much from the prevailing English interpretation, especially given that in 1774, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for “certain High Crimes and Misdemeanors,” after he accepted a royal salary offered to him instead of the stipend provided by the Massachusetts legislature. This was a noncriminal act.

Furthermore, of the few public officials who have been impeached throughout American history, many were impeached despite not having committed any formal law-breaking. Judges John Pickering and Mark Delahay were impeached for drunkenness and insanity, respectively. In the impeachment of former President Andrew Johnson, one of the many accepted articles of impeachment against him impeached him for “On numerous occasions, made with loud voice, certain intemperate, inflammatory and scandalous harangues, and did therein often loud threats and bitter menaces against Congress and the laws of the United States….”

It seems rather obvious that “high crimes and misdemeanors” does not refer to actual crimes, but instead general misconduct in or abuse of public office. So the question then arises: Under this standard, should former President Trump have been impeached and should he now be convicted by the Senate? The answer is a resounding yes.

Trump’s recent actions have been not only childish, but deeply irresponsible and profoundly dangerous to the institutions upon which this country was built. Upon the conclusion of the election, he proliferated baseless conspiracy theories intended to subvert and undermine American democracy and sought to prevent the confirmation of his political rival, thereby attempting to forestall or perhaps even forever suspend the peaceful transition of power. He then proceeded to engage in speech which, although not illegal for the reasons mentioned above, was extraordinarily reckless and served to energize and encourage supporters who were indignant over perceived electoral fraud and had previously displayed a willingness to resort to violence. As his supporters were inside the capitol, threatening the lives of lawmakers who had "betrayed" him, he took to Twitter to criticize Mike Pence. And despite multiple requests, he initially refused to send in the national guard.

If this does not all qualify as, at least in a moral and ethical sense, misconduct in public office, I don’t know what does. Trump brazenly violated his oath of office and dealt grave damage to the health and security of our democracy. The House of Representatives was justified in impeaching him and the Senate should promptly vote to convict.