Is Impeachment About More Than Removal? Depends Who You Ask : The NPR Politics Podcast The question is at the center of next week's impeachment trial in the Senate, which begins Tuesday. Donald Trump's defense team says you can't vote to remove a president who is already gone. House Impeachment managers are prepared to argue that an impeachment conviction ultimately means more than that.

This episode: congressional correspondent Susan Davis, senior political editor and correspondent Domenico Montanaro, and legal affairs correspondent Nina Totenberg.

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Is Impeachment About More Than Removal? Depends Who You Ask

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Is Impeachment About More Than Removal? Depends Who You Ask

Is Impeachment About More Than Removal? Depends Who You Ask

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  • <iframe src="https://www.npr.org/player/embed/964190643/964198878" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

ALLISON BYERLEY: Hi, this is Pastor Allison Byerly in Tulare, Calif., and I'm about to start working on a sermon. This podcast was recorded at...

SUSAN DAVIS, HOST:

2:10 p.m. on Thursday, February 4.

BYERLEY: Things may have changed by the time you hear it. OK, here's the show.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

DAVIS: Well, I hope this podcast gives her some inspiration for that sermon.

DOMENICO MONTANARO, BYLINE: Hey, we can use whatever intervention we can get.

DAVIS: (Laughter) Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

NINA TOTENBERG, BYLINE: I'm Nina Totenberg, legal affairs correspondent.

DAVIS: And former President Trump's impeachment trial begins in the Senate next week. At the core of this case is whether the Senate has a constitutional right to have the trial at all since Trump is no longer in office. The Senate has directed the impeachment managers and Trump's defense team to come prepared to make their case on this question. Both teams filed documents with the Senate earlier this week previewing the cases that they will make. Nina, sometimes I think about if the Founding Fathers had just been a little more specific, we could prevent a lot of heartburn over these kinds of questions.

(LAUGHTER)

TOTENBERG: Well, they were not that specific about a lot of things. They thought they were being specific enough. And I would have to say that the overwhelming consensus among constitutional scholars is that the founding fathers intended to allow somebody to be convicted - impeached and convicted after leaving office. But there are some who say it is a removal provision and only a removal provision. The counter to that, of course, is that the second part of the impeachment clause says, and if you're convicted, we can strip you from ever holding federal office again.

DAVIS: Trump's legal team is focused on a specific part of the Constitution, Article 1, Section 3, which reads, quote, "judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy an office of honor." Nina, this seems to be the focus of their argument, that if the focus of impeachment is to remove someone from office, then it's moot right now.

TOTENBERG: And that's exactly what the Trump lawyers say. On the other side, though, they say that what the founding fathers were most concerned about in writing this Constitution was preventing abuse of power. After all, they were escaping from the abuse of the king's power. And what the managers say in the brief that they filed this week is that presidents don't get a free pass to commit high crimes and misdemeanors near the end of the term because the framers feared, more than anything else, a president who would abuse power to remain in office against the will of the electorate, and that the paradigm, sort of essence of abuse of power, would be to try to manipulate the electoral processes, the democratic process to stay in office. And you can't let that go just because the president ends up being a lame duck. That's basically their argument.

MONTANARO: I think what we can safely say here is that they're relying on what the definition of and is.

(LAUGHTER)

MONTANARO: And if that sounds familiar (laughter), looking back to that last time a president was impeached before Trump was President Clinton when he cited the word is and what the definition of is is. But Trump's legal team interprets that word and, and says that it's a, quote, "condition precedent" which must occur before and jointly with disqualification. Now, as Nina said, that's not the prevailing conclusion of most scholars. Because that disqualification clause, you know, would mean - essentially, if you're dumping that, you're saying that anyone could resign and not face the punishment of not being able to run for office or hold office again.

And by the way, the Congressional Research Service, which is the research group that writes these reports and briefings for Congress, wrote one on January 15 in anticipation of this potential trial for members of Congress and noted that though the text of the Constitution is open to debate, it appears that most scholars who have closely examined the question have concluded Congress has the authority to extend the impeachment process to officials who are no longer in office, and there's precedent for it, Sue.

DAVIS: Well, this is the core counterargument that the House impeachment managers are making. They have focused on another part of the Constitution, a very simple line in the Constitution that states that the Senate, quote, "shall have the power to try all impeachments." And the lead impeachment manager, Jamie Raskin, who's a Democrat from Maryland - he's also a constitutional scholar - in the brief that they filed this week focused on the word all. There's no debate that the impeachment itself in the House was OK because Trump was impeached while he was still in office. So their point is saying, you know, if the impeachment was fine in the House, then the Senate trial can proceed.

TOTENBERG: And in fact, there is precedent for this, as the CRS report points out. Domenico did a piece about this. And in the end, the Senate voted on whether it could hold a trial for somebody who had already left office. And it was a disgraced and very rich and very corrupt secretary of war.

MONTANARO: Yeah, I mean, there was a secretary of war for Grant, William Belknap, who was, you know, basically on the take, taking all this money from an Indian trading post. He had posted someone to that job for that specific reason of getting kickbacks and bribes. He essentially took what amounts to today $2 million over a year per year from this person. Once that was found out, the House took up impeachment articles, and the House did the investigation to find out that he was doing this and concluded that he was. He raced over to the White House in tears, gave his resignation, hoping to avoid impeachment. And the House instead, a couple of hours later, actually took up the impeachment anyway. He resigned, and the impeachment manager still moved the case to the Senate. The Senate voted 37-29 that Belknap was, quote, "amenable to trial by impeachment for acts done as secretary of war, notwithstanding his resignation of said office before he was impeached."

Now, in the end, he was acquitted by people, by the senators, not because they thought he didn't do it (laughter). Only three senators back then actually said they thought that on the merits, he should be acquitted. But the rest of them thought that the Senate did not have jurisdiction. So some 40% of the senators back then had that same argument that Republicans are making now. Now, the impeachment managers back then thought, hey, this was worth it because, quote, "it has been settled thereby that persons who have held civil office in the United States are impeachable and that the Senate has jurisdiction to try them." So much for that argument.

DAVIS: I do wonder if this Senate trial, then, will settle this question of whether a president, a former president can be tried in the Senate because it's never happened before. But the Senate and Congress is a body of precedents. And if they are setting the precedent with the trial of former President Donald Trump that, yes, you can go forward with trial, then that might settle the matter if this ever happens again because the Senate will have set the precedent that, yeah, we can do this.

MONTANARO: Well, I do think that there's a majority support for super-precedent, if you will borrow a Supreme Court term...

TOTENBERG: (Laughter).

MONTANARO: ...You know, precedent upon precedent here. But there isn't two-thirds support for it, as we saw 45 Republicans said that they thought that taking up this trial, this current one, was unconstitutional.

DAVIS: All right. Let's take a quick break. And when we get back, we're going to look at another argument Trump's defense team is making about free speech.

And we're back. And Trump's defense team's memo to the Senate contains another constitutional question - whether or not Trump was just exercising his First Amendment right to free speech.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.

DAVIS: The core argument of the impeachment managers' case is that Trump, through his rhetoric, helped incite a mob to storm the Capitol on January 6. And he gave this political speech at a political rally in the hours before it took place.

(SOUNDBITE OF ARCHIVED RECORDING)

TRUMP: We're going to walk down to the Capitol...

(CHEERING)

TRUMP: ...And we're going to cheer on our brave senators and congressmen and women. And we're probably not going to be cheering so much for some of them because you'll never take back our country with weakness. You have to show strength, and you have to be strong.

DAVIS: Nina, to this question, I mean, doesn't the First Amendment exist to protect unpopular political speech?

TOTENBERG: Yes, it does, if you're just speaking as a citizen and you couldn't be prosecuted. In all likelihood, it would be impossible to prosecute somebody and seek to send them to jail for the kind of speech that Donald Trump made. But there is nothing in the Constitution that says you can't hold public officials accountable for incendiary or inciting speech. And, in fact, that is the core of the argument here, that we have to hold this person who was president of the United States of America when he made this speech and in the months leading up, when he refused to accept the verdict of Republican officeholders and Republican judges who said he had lost the election, that he called these people to Washington, that he set them on fire essentially and sent them up to the Capitol, the seat of power in the United States, to destroy the government of the United States and its democratic systems of electing people to office. That is the core. And it's not - if he were convicted, he wouldn't go to jail. If he were convicted, he would, in all likelihood, be barred from holding federal office ever again. But it's a false equivalency to say you have free speech. It's your opinion. It's not - your opinion is protected, but your opinion is not necessarily protected in this sense because high crimes and misdemeanors are what the Senate says they are.

MONTANARO: Right. This is a political process. This is not a court of law, which is why when people talk about, you know, incitement to insurrection is actually, you know, coded in U.S. law and that, you know, this wouldn't hold up in a court of law - well, it's not about that. It's about, like you said, what the Senate deems is appropriate or not - or the appropriate use of the office of the presidency, which is what this is about.

Now, what's interesting about that specific thing on incitement - Trump's team responded and said in a kind of novel way that that phrase - if you don't fight like hell, you're not going to have a country anymore - they said, quote, "had nothing to do with the action at the Capitol, as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech," they said (laughter).

There's always been these allusions to some violent way to take back the country, Sue. You know, like, covering the Tea Party even, it's always been this sort of, like, you know, fake revolutionary reenactment kind of thing. And there's always, you know, this sort of war-like footing that they take on that I guess most of us have sort of looked at with maybe our eyes open, but to say, jeez, is this really going toward violence or not? And then you have something happen on January 6. His team denies that has anything to do with that.

DAVIS: I've been thinking about this a lot since January 6 because obviously it's been so much of the focus of everything that we've been covering on Capitol Hill. But I think it's a good question of whether you could, you know, proceed with criminal charges against the president because I do think in some cases, those First Amendment protections or political speech historically has often been aggressive and violent undertones. But the criminal law and First Amendment protections don't even really matter here.

MONTANARO: Right (laughter).

DAVIS: And by that, I mean impeachment is a totally subjective standard. There is - I can think of many things that a president could say that would not at all be criminal in nature but could be deemed an impeachable offense by the Congress. He could say any number of racist or inflammatory or offensive things that the Congress could say, this is not a way a president should act. He has to go. So it seems important to sort of separate whether something could - was a crime, could potentially be a crime and whether that even matters.

MONTANARO: And, in fact, while this "answer," quote-unquote, to the impeachment does mostly focus on a constitutional argument, there is an argument that defends President Trump's rhetoric. And, in fact, it says at one point, insufficient evidence as it exists upon which a reasonable jurist could conclude that the 45th president's statements were accurate or not, and therefore, he denies they were false.

(LAUGHTER)

MONTANARO: I mean, this has been through the courts dozens of times. There was no widespread fraud in this election. And despite all of that, they still want to stick to that line that it could be true.

DAVIS: All right, well, that is a wrap for today. We'll be back tomorrow with our weekly roundup. I'm Susan Davis. I cover Congress.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

TOTENBERG: I'm Nina Totenberg, and I cover all things legal.

DAVIS: And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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