President Biden and congressional Democrats have an opportunity to move beyond what they have routinely characterized as the “chaos” of the Trump era. Yet having finally succeeded in evicting him from the White House and getting him censored by the various social media platforms, they plan to drag the Bad Orange Man back into the spotlight for a show trial that even left-of-center legal scholars have declared unconstitutional by definition. On Monday, House Speaker Nancy Pelosi will send her slapdash article of impeachment to the Senate, where the Democrats are already preparing a performance they plan to debut during the second week of February.
But the show will be a flop. As professor emeritus at Harvard Law School Alan Dershowitz writes at the Wall Street Journal, “Now that Donald Trump is a private citizen, the Senate should dismiss the article of impeachment against him for lack of jurisdiction…. Beyond the constitution, there are strong policy and historical reasons an incoming administration shouldn’t seek recriminations against its predecessor.” In other words, the Senate lacks the authority to try a former official, and it would be dumb politics. Trump’s populist movement is by no means dead, and few of his 74 million voters believe he incited insurrection. Consequently, Senate Republicans are getting cold feet. The Hill reports:
Republicans say the chances that former President Trump will be convicted in an impeachment trial are plummeting … Only five or six Republican senators at the most seem likely to vote for impeachment, far fewer than the number needed, GOP sources say.… They have observed the angry response to House Republican Conference Chairwoman Liz Cheney (R-Wyo.), who is facing calls to resign from the House GOP leadership team after voting last week to impeach Trump.
A failure to convict Trump for inciting insurrection will also frustrate Democrat hopes of barring him from holding public office in the future. As Shmuel Klatzkin pointed out in The American Spectator last week, this dubious goal is the main reason they insist on trying Trump after he has left office. They are so terrified that he will return after four years, as he has hinted he will, and win a second term, that they want to deprive him of the right to run. But because the Senate lacks the jurisdiction to put citizen Trump on trial — much less the votes to convict him — it will certainly fail to disqualify him from holding public office. Moreover, it isn’t at all clear that Chief Justice John Roberts is willing to preside over such a travesty.
The Democratic leadership of the Senate doesn’t seem to have considered the jurisdiction issue any more than the Democrats in the House bothered with due process during their obscenely precipitous impeachment charade. According to various news outlets, Trump has recently hired South Carolina attorney Butch Bowers to defend him pursuant to a recommendation by Sen. Lindsey Graham (R-S.C.). But if Democratic leadership in the Senate insists on plunging ahead with the trial in February, there will obviously not be enough time for the Trump legal team to properly prepare a defense. This suggests that Trump should consider following a strategy recently proposed by legal scholar Jonathan Turley:
[Trump] must first decide whether he wants to sit for trial at all. He can legitimately argue that a private citizen cannot be impeached and the Senate cannot remove a person from office who has already left.… Trump can treat the proceeding as an extra-constitutional act because he is no longer subject to removal. If the Senate were to convict, he would have standing to challenge any disqualification from future federal offices. He could well prevail.
This strategy would also highlight the illegitimacy of the impeachment process, but it’s unlikely that the famously pugnacious former president would be willing to watch passively while people like Rep. Eric Swalwell (D-Calif.) accuse him of inciting insurrection. Turley points out that the failure to put on a defense is not an admission of guilt, but there is little doubt that it would be portrayed that way by the Democrats and most of the media. The charges made by the Left in general are becoming ever more irresponsible as it is. In a blog post published Friday, for example, a University of Virginia academic actually compared the January 6 mayhem to the conspiracy to assassinate President Abraham Lincoln.
This rubbish was written at Lawfare by Professor Philip Zelikow by way of introducing the claim that Trump can be barred from holding office via Section 3 of the 14th Amendment. The obscure provision has received increased attention since it began to dawn on the Democrats that impeachment is a dumb idea. According to Zelikow, “The 14th Amendment path is true to the facts and preferable procedurally, as compared to impeachment.” Nope. As Indiana University law school professor Gerard N. Magliocca told the Washington Post, a Section 3 resolution would merely express congressional opinion and that the courts would have to make the legal declaration. “It’s not just something that Congress can do,” he said.
The smartest move for the Democrats would be for the Senate to quickly dismiss the House’s impeachment article and drop the goofy 14th Amendment idea. They desperately want to banish Trump to outer darkness, but they will achieve precisely the opposite result if they make a martyr of him in a show trial. They won’t be able to convict him of inciting insurrection and can’t bar him from holding future office. Impeachment will be dead on arrival in the Senate, but Trump will be back above the fold. That’s exactly where he wants to be, battling the swamp creatures as his 74 million loyal supporters cheer him on.