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With Second Impeachment, Trump Finds Sudden Respect for the Constitution

Trump’s impeachment defense lawyers cite the Constitution — even though he spent his whole presidency undermining it.

February 8, 2021
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Brendan Smialowski/Getty

Ahead of Donald Trump’s second impeach­ment trial, his lawyers have raised the objec­tion that a post-pres­id­en­tial impeach­ment is uncon­sti­tu­tional. This is rich coming from a man whose path to power was paved by viol­a­tions of campaign finance law and who thumbed his nose at the Consti­tu­tion and histor­ical norms once in office.

Trump’s 2016 campaign was an ethical mirage. He prom­ised that he would “drain the swamp” of special interest money in DC. In 2015, he told the Wall Street Journal , “When you give [money to politi­cians], they do whatever the hell you want them to do.” Trump tried to make the case that because he was inde­pend­ently wealthy, he would not be beholden to polit­ical donors. He also made a big show of claim­ing that he was a self-financed candid­ate. That was only partially true: in fact, 80 percent of his campaign funds came from other people’s wallets. And as prosec­utors would later show in their prosec­u­tion of his lawyer Michael Cohen, not all the money to get Trump elec­ted in 2016 was prop­erly repor­ted as campaign spend­ing. Moreover, the Trump Found­a­tion would later be shuttered by the New York State attor­ney gener­al’s office in part because it was illeg­ally hand­ling 2016 campaign matters. In other words, Trump’s 2016 campaign’s beha­vior was a coun­try mile from his anti-corrup­tion rhet­oric.

If any 2016 voters fell for this “drain the swamp” ruse, they were quickly faced with the real­ity of the same old special interests cozy­ing up to Trump. And because Trump did not relin­quish his busi­ness ties when he entered the Oval Office, these groups discovered new ways to curry favor. Not only could donors give tradi­tional campaign funds directly to him and super PACs support­ing him, they could liter­ally line his pock­ets by stay­ing at his hotels and using his golf clubs. Depend­ing on who was doing this spend­ing — perhaps a governor or a foreign diplo­mat — such spend­ing viol­ated either the domestic or foreign emolu­ments clauses (or both) of the Consti­tu­tion. The hotel loop­hole was partic­u­larly useful for diplo­mats who cannot legally give to an Amer­ican polit­ical campaign, but who were not shy about rent­ing out rooms at Trump prop­er­ties. Unfor­tu­nately, the Supreme Court recently dismissed lawsuits trying to put an end to these corrupt prac­tices on the grounds that the cases were moot because he had left office.

There were also the campaign finance crimes commit­ted during the 2016 elec­tion, which landed his former lawyer Michael Cohen in prison. Cohen has claimed under oath that he only facil­it­ated hush money payments to women with whom Trump allegedly had affairs at the request of then-candid­ate Trump. If true, then he viol­ated the law in trying to illeg­ally influ­ence his first elec­tion.

Of course, Trump’s first impeach­ment was about attempts to improp­erly inter­fere with his second elec­tion. He was impeached for asking the pres­id­ent of the Ukraine to invest­ig­ate Joe Biden and his son in exchange for milit­ary assist­ance. This soli­cit­a­tion viol­ated federal campaign finance laws, and Trump’s with­hold­ing of funds already alloc­ated by Congress viol­ated the law as well. The House consequently impeached him for abuse of power.

Trump’s acquit­tal by the Senate in 2020 only seemed to embolden his norm-break­ing beha­vior during his final year in office, culmin­at­ing in his attempt to over­turn his elec­tion loss to Pres­id­ent Biden. The lies Trump spewed about nonex­ist­ent voter fraud and his refusal to concede fueled the attack on the Capitol the day that both houses were in session to certify the Elect­oral College votes, result­ing in his second impeach­ment. Make no mistake: this was an assault not just on the Capitol build­ing where the count took place, but also on one of our most sacred consti­tu­tional processes.

In 2016, Trump was a bene­fi­ciary of the Elect­oral College when it handed him the White House, despite the fact that he lost the popu­lar vote. But when he was on the losing side of the Elect­oral College tally in 2021, he sent an angry, viol­ent mob to the Capitol, where they stormed the build­ing and succeeded in delay­ing Congress (and his own vice pres­id­ent) from peace­fully count­ing the votes that reflec­ted the will of over 159 million Amer­ic­ans.

In the melee, five people tragic­ally died, includ­ing a Capitol Police officer. A number of people in the crowd had come prepared for viol­ence. Some set up gallows outside of the Capitol, and the chant “hang Mike Pence!” resoun­ded through the halls. Demo­cracy stood on a knife’s edge, and consti­tu­tional order stared into the abyss for several hours on Janu­ary 6.

The House impeached Trump for the second time on Janu­ary 13, while he was still pres­id­ent. Then, Senate Major­ity Leader Mitch McCon­nell refused to take up the meas­ure for the remainder of Trump’s term, essen­tially running out the clock on the possib­il­ity that Trump could be removed from office by the Senate. 

But Trump’s second impeach­ment trial will continue now that the Demo­crats have regained the Senate major­ity, though the ques­tion of removal is moot. One issue at hand is how to apply Consti­tu­tion’s direc­tion that “Cases of Impeach­ments 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[.]” In plain English, this part of the Consti­tu­tion means that if Trump is convicted by the Senate, he could be barred from running for office ever again.

The former pres­id­ent’s lawyers are now making the argu­ment that a pres­id­ent cannot be impeached and tried after leav­ing office. As consti­tu­tional schol­ars have recently writ­ten, this view is incon­sist­ent with the preced­ent set when William W. Belknap was impeached after resign­ing as secret­ary of war in 1876.

It’s also incred­ibly late in the game to argue that the same Consti­tu­tion that Trump ignored and under­mined for four years should now come to his rescue — espe­cially when he stands trial for trying to viol­ently upend Amer­ica’s consti­tu­tional order a mere month before.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.