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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
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.