Former President Trump’s main defense at the upcoming second impeachment trial will be that the Senate lacks jurisdiction to try him because he is no longer in office. Any senator who hides behind that argument to avoid passing judgment on the merits is craven and derelict.
First, to quote Chief Justice Marshall, “it is a Constitution we are expounding,” no less because the Senate has the responsibility to expound it. There is, in fact, a right answer both to the constitutional question – based on text, structure, and history – and the process for determining it. Namely, it is the Senate, and not the court, who decides.
There is no question that Trump was duly impeached while in office. The Constitution says expressly that the Senate has the power to try “all” impeachments. Moreover, the Senate as a body has held no fewer than three times that it has jurisdiction to try a former official. (Indeed, the first impeachment trial was of a former official). Some senators seem to think it is nevertheless up to them to decide the question anew. But they’ve taken an oath to the Constitution, exactly like judges and the President. To now treat the question as unsettled is no different from a judge deciding to ignore a binding precedent.
It may be that nobody can stop them, but that’s all the more reason they need to be faithful to the Constitution. It is particularly craven for them to hide behind a faulty answer on a topic they really don’t know, precisely to avoid passing judgment on Trump’s grave conduct on January 6th.
Second, Trump will likely argue through his lawyers that he didn’t intend to foment the insurrection, but only was airing general concerns about election security. That’s a defense on the facts, and it calls for evidence.
The best evidence, of course, would be Trump’s own testimony; however, he will go to any lengths to avoid testifying because of his untamed propensity to lie. It would likely expose him to perjury. Next to his words, the best evidence here is his reported “delight” as he watched the bedlam develop from the safe perch at the White House. Of course, anyone who had not intended his supporters to riot would have done everything in his power to squelch it. Trump, by contrast, supposedly watched with pleasure as the riot turned deadly.
Contrary to the great weight of the evidence, assume for a moment that Trump didn’t intend to incite an insurrection. Regardless, the evidence is clear that he did incite one, and the testimony of many of the insurrectionists themselves bear this out. The President’s constitutional duty is to ‘take care’ that the laws be faithfully executed. It remains a flagrant violation of the Take Care Clause if he recklessly set in motion a violent insurrection to impede the peaceful transition of power, the cornerstone of our democracy.