- So, the Senate failed
to procure enough votes to convict Former President Trump of the charge of
incitement to insurrection and thus, in a way, the Senate
has acquitted President Trump of his record second impeachment. For many, this was a fait accompli, that there was simply
no way it was possible for the Democrats or anyone else to convince enough Republicans to form the necessary 2/3 majority in order to convict on impeachment. But even still this
was a marked difference from the first impeachment trial and a record number of members of the same party as the former president voted to convict. But let's take a look at the five days that comprise the impeachment trial, examine the legal arguments, and see if this was indeed inevitable and whether the arguments on the prosecution side
and the defense side held any water. (bright music) Hey, LegalEagles, it's time to think like an impeachment lawyer, because Former President Trump was able to escape
conviction on impeachment for a record second time, but this time only narrowly. Now, as we've talked about
many times on this channel, an impeachment trial is
not a criminal trial. You know this. You know that it is a political trial, or more specifically it's
a trial by Parliament. And lawyers like myself
like to make analogies to the criminal justice system, but these analogies are always imperfect, and this moves in several
different directions. So we're gonna be talking
about things like due process and the hearsay rule, but often these things
are completely inchoate in an impeachment setting because the Senate makes its own rules. It can adopt to the
federal rules of evidence but it doesn't have to, and due process considerations that exist for private citizens in the criminal justice system simply do not exist in
an impeachment setting. But that doesn't necessarily mean that we need to throw any of that out, it just means that it might
not necessarily carry the day. And we saw this throughout
the impeachment trial with lawyers making
contradictory arguments, with senators justifying their reasons for voting or not voting for
conviction of impeachment in ways that absolutely do not jive with the criminal justice system. And we also saw things
like a group of senators meeting with the defense lawyers. We saw Senators Cruz, Graham, and Lee actually meet with
President Trump's surrogates to discuss the defense of the President. And people were absolutely
right to point out that in a criminal justice setting members of the jury
meeting and strategizing with attorneys for either side would be completely improper. This is not a criminal justice setting. Literally the impeachment
clause of the Constitution does not allow for criminal penalties. It's on a narrow issue
of preventing someone from holding office again. So, look, politicians are
going to be politicians. But that being said, let's
dive into the legal arguments that were made. So let's start with the very first foundational jurisdictional question, whether the Senate can even
hold an impeachment hearing related to an official who is
no longer in that position. The first day of the impeachment trial was devoted to this very question, because generally you have
to determine issues of law before you can get to the issues of fact. Some argued that the Constitution doesn't answer this question directly, so let's start with the historical context that the Framers were dealing with. - 'Cause as Hamilton wrote, "England provided the model "from which the idea of this
institution has been borrowed." - In fact, every impeachment that occurred during the Framers' lifetime actually concerned a former official. And the consensus of the first states to draft their own constitutions was that impeachment of former
officials was not banned. - Every single state
constitution in the 1780s either specifically said
that former officials could be impeached or were entirely consistent with the idea. In contrast, not a
single state constitution prohibited trials of former officials. - And Virginia, Delaware,
Vermont, and Pennsylvania explicitly permitted late impeachment in their state constitutions, which were written before
the US Constitution. And, generally speaking, in
the pre-constitutional era, officers were impeached
after they left office. In Vermont, for example, State Representative Jonathan Fassett was impeached after he joined an angry mob that wanted to stop a
county court from convening. Huh, I wonder if that sounds familiar. He was impeached and later
convicted after he left office. And the Constitution was being hashed out during the same month that British Governor-General
of India William Hastings was being impeached for corruption. Hastings was already out
of office at the time. The people who drafted the Constitution repeatedly referred to
the Hastings impeachment in an offhand manner, the same way that people in our era may refer to the Clinton impeachment without getting into the gritty details. And apparently the Founders did not object to the lateness of this impeachment. Instead, they used it to show
why impeachment was important. George Mason noted that Hastings
committed a slew of crimes but none of them fit the
definition of treason. Mason warned that the
definition of treason in the US Constitution would not include attempts to
"subvert the Constitution." Therefore, impeachment should include high crimes and misdemeanors. And George Mason certainly imagined someone like Donald Trump. In other words, Mason thought that making
a character judgment was an important part of the
scheme of checks and balances between the branches of government. So, Lin-Manuel, where is
George Mason's musical? So, not surprisingly, almost the entire first day
of the impeachment trial was devoted to this legal question. Can the Senate hold an impeachment trial related to an official
who has either resigned or whose term has expired? And generally that's a good idea because if this was a criminal trial you would almost always dispose
of all the legal questions before getting to the issues of fact. And that's especially important here because this is a political question where the Supreme Court
would never touch it with a 10-foot pole. In other words, even if Former President
Trump was convicted, there's no way that he
could try to appeal this to the federal courts and say that this was
improper or unconstitutional. The Supreme Court would
100% never answer it because this is a political question that's left up to the judicial branch. And, so, given that on the
first day the Senate held a vote and held by a majority
that the Senate believed it had jurisdiction to hold
this impeachment trial, one would think that this
legal question was settled. But of course this is
partially a political question and thus the senators
can do whatever they want for basically whatever reasons they want. But there is I think one important analogy to the criminal justice system that applies in a situation like this, because the way that a
criminal trial would work is that the lawyers and the judge would hash out all of the legal issues and eventually, once those
things are hashed out, the judge will give the jury
instructions to the jury that gives them all of
the law that they need to understand the decision
that they're going to make. And there's a phrase that we
use to describe what happens when a jury disregards
those kind of instructions and makes a decision based on
whatever rational they want, and that phrase is jury nullification. And it's completely reasonable to say that several members of the Senate engaged in jury nullification to find Former President Trump not guilty. And then there's also the
doctrine of unclean hands because it's not like
the date of this trial was set in stone from on high. Let's not forget that former
Senate majority leader Mitch McConnell was in control
of the Senate's schedule and prevented the Senate
from holding a trial on Former President Trump
while he was still in office. And that's particularly galling when Mitch McConnell used that timing as the reason that he
didn't vote to convict, saying that impeachment is
primarily a tool for removal, though he leaves open the argument that impeachment can be used
outside of that context, which the majority of legal
scholars believe as well. And some have argued, again analogizing to the
criminal justice system, that if you in fact believe that the Senate doesn't have jurisdiction, then you can't participate in that vote. But there is one senator who I think threaded this needle and actually came to a principled stance while fundamentally disagreeing with some of these
jurisdictional questions, and that's Senator Richard
Burr from North Carolina who recognized that he couldn't hide behind the unconstitutionality argument and voted to convict. He stated, "When this process started, "I believed that it was unconstitutional "to impeach a president who
was no longer in office. "I still believe that to be the case. "However, the Senate is an
institution based on precedent, "and given that the majority of the Senate "voted to proceed with this trial, "the question of constitutionality "is now established precedent. "As an impartial juror, "my role is now to determine "whether House managers have
sufficiently made the case "for the article of impeachment
against President Trump. "I've listened to the arguments
presented by both sides "and considered the facts. "The facts are clear." And then voted for conviction. Those are the words of someone
who had a reasonable argument related to the process
of the impeachment trial but then did his duty
based on his position as the impeachment went forward. So, with that historical context, let's look at the actual
text of the Constitution. Article II, Section 4 says, "The president, vice president, "and all civil officers
of the United States "shall be removed from
office on impeachment "for and conviction of treason, bribery, "or other high crimes and misdemeanors." Trump argues that the plain
meaning of the word officer means a person who currently holds office, not an ex-officer. The phrase "removed from
office" in this context would mean that once a
person was already gone, he or she cannot be removed. And Trump lawyer David Schoen
addressed this argument in his trial brief but didn't discuss it in any detail during his opening statement. The Democrats argued that the question of whether a former official can be tried as part of the impeachment process depends not just on the language
of Article II, Section 4, but also depends on other
sections of the Constitution that deal with impeachment. They begin with the question, how does the Constitution
describe the accused in an impeachment trial? We already know that Article
II, Section 4 simply says the president, vice president,
and all civil officers can be removed. Trump's lawyers rely
exclusively on this provision to make their argument
that only current officers can be impeached. And House managers rely on Chuck Cooper, a staunchly conservative lawyer who has represented Republicans including Minority Leader Mark Meadows. - As Cooper says, Article II, Section 4
means just what it says. The first half describes what an official must do to be impeached, namely commit high
crimes and misdemeanors, and the second half describes what happens when civil
officers of the United States, including the sitting president, are convicted. Removal from office. That's it.
- In Cooper's words, that establishes what is
known in the criminal law as a mandatory minimum punishment. And then we move on to the next section. To define the identity of the accused in an impeachment trial, the House managers also rely on Article I, Section 3, Clause 6 and 7, which refer to a person and a party rather than a president, vice
president, or civil officer. Clause 6, "The Senate
shall have the sole power "to try all impeachments. "When sitting for that purpose, "they shall be on oath or affirmation. "When the President of the
United States is tried, "the Chief Justice shall preside. "And no person shall be convicted "without the concurrence of
2/3 of the members present." Then we move on to Clause 7. "Judgment in cases of impeachment "shall not extend further
than removal from office "and the disqualification
to hold enjoyment "of any office of honor, trust, or profit "under the United States. "But the party convicted
shall nevertheless be liable "and subject to indictment,
trial, and punishment "according to law." So here we have the words person and party rather than a civil officer in describing the accused. Arguably, this word choice
includes former officials. - Who could be put on trial,
rather, for impeachment other than civil officers? Who else could a person or a party be? Well, really, there's
only one possible answer. Former officers. - And then circling back to some prior language that we read, the House managers also
direct our attention back to the language of
Article I, Section 3, which states judgment
in cases of impeachment shall not extend further than to removal from office
and disqualification. Representative Joe
Neguse gave a masterclass in the construction of these words. - [Joe] The Constitution does not say, "Removal from office and
then disqualification." It doesn't say, "Removal from office followed
by disqualification." - Now, on the other hand, the Trump argument is that the and binds both the removal and
disqualification together and thus you can't have a removal of someone who's already
been removed from office, meaning that therefore you
can't have the disqualification against someone who's already
been removed from office. The vast majority of legal scholars do not adhere to this
particular interpretation and are following what
Representative Neguse was already arguing. But then we go back to
Article I, Section 3, which states that "the Senate
shall have the sole power "to try all impeachments." The House managers argue
that all means all. It doesn't say the Senate has the power to try impeachments
against sitting officers. What we're left with is
an impeachment mechanism that includes four possible punishments. Impeachment by the House, removal from office by the Senate, disqualification from
holding office again, and a criminal prosecution
in a court of law. And, of course, many have
argued the policy argument that a disqualification was
subject to a time limit. That creates a dangerous loophole, a potential January exception. - Officials could commit
the most extraordinary destructive offenses
against the American people, high crimes and misdemeanors, and they'd have total control over whether they can ever be impeached, and, if they are, whether the Senate can try the case. If they want to escape any public inquiry into their misconduct or the risk of disqualification
from future office, then it's pretty simple. They could just resign one minute before the House impeaches, or even one minute
before the Senate trial, or they could resign
during the Senate trial if it's not looking so well. That would effectively
erase disqualification from the Constitution. - So, assuming that this
impeachment trial is legitimate, which the overwhelming
weight of legal authority seems to suggest, that takes us to the arguments for the conviction on impeachment and the arguments against. On days two and three of
the impeachment trial, House managers made their
case arguing for conviction. House managers spent most of day two presenting new footage
of the riots themselves. And, honestly, it's shocking. And let's take a moment to recognize a true American hero, Eugene Goodman, who appears to have single-handedly saved the life of Mitt Romney and countless other
representatives and senators. A man whose quick thinking saved lives and whose decision not to use his gun also spared the lives
of countless rioters. And we forget that this
easily could have been a massacre in two different directions. Not only the politicians, but also the rioters and
protestors themselves. And while many would have cheered that on, that too would have been
an American tragedy. And it's only through the quick thinking of people like Eugene Goodman that that tragedy was averted. So let's start with the
arguments of the House managers. In their trial brief they argue that "this trial arises from
President Donald J. Trump's "incitement of insurrection "against the Republic
he swore to protect." The House impeachment managers walk through the lead-up to January 6th, discussing how the Trump change campaign refused to conceded that
Trump lost the election. Even after Trump lost over 60 legal cases related to the election, he refused to accept the loss and instead saying he won in a landslide and the vote was stolen from him. Former President Trump also pressured state election officials,
state representatives, governors and US attorneys to overturn the will of
the people in their states. After the Electoral College voted to certify President Biden's win, Former President Trump
asked his supporters to come to Washington on
January 6th to "stop the steal." January 6th was the day
that Congress would meet to certify the election, and Trump told his supporters that the results could
be changed on that day. Trump spent approximately $50 million on a campaign to stop the steal. - These ads were designed to run all the way up to January 5. And then they stopped. - Leading many to suspect that the Trump campaign
didn't actually think that there was any value in making the arguments after the 6th and putting everything into that date. The Trump campaign helped
plan the event on January 6th. Trump selected the date
because this was the day that Biden's win would be finalized. - The Constitution says you
have to protect our country and you have to protect our Constitution and you can't vote on fraud. And fraud breaks up
everything, doesn't it? When you catch somebody in a fraud, you're allowed to go by
very different rules. So I hope Mike has the courage
to do what he has to do. - He's talking about you! (people shouting) - And we fight. We fight like hell. And if you don't fight like hell, you're not gonna have a country anymore. - Trump told them that Mike Pence could overturn the election results. Right after Trump was informed that Vice President
Pence had been evacuated due to all of the supporters
invading the Capitol, minutes later he tweeted to the
mob that Pence was a coward. "Mike Pence didn't have the courage "to do what should have been done "to protect our country
and our Constitution. "USA demands the truth." The mob yelled Trump's
tweet into a bullhorn while they went into the Capitol building. The mob searched for Pence, the mob searched for the votes, and the mob searched for
other elected representatives who were going through with
the election certification. And as demonstrated by his calls to Senators Tuberville and Lee, Trump was willing to use the violence to his effective advantage, as leverage to try and
get them to do something to stop the certification. So this is the factual basis for the articles of
impeachment from the House. Now let's talk about the legal basis. The House argues that these actions were high crimes and misdemeanors. I've done many other videos on the meaning of high
crimes and misdemeanors, but suffice to say almost
all legal scholars agree that the term was meant
to include transgressions that were not necessarily actual crimes prohibited by federal law since there wasn't very much
federal law at the time, and that it was a catchall for things that are a violation of public trust. Certainly actual crimes could be high crimes and
misdemeanors as well, but it's not necessary
that a president be removed because of an actual statutory crime. And as we've discussed, the Founders believed that
the actions against the state which subvert the
government were impeachable, as Alexander Hamilton described them as actions which are "political, "as they relate chiefly to
injuries done immediately "to society itself." Historically, politicians
have taken the position that these offenses could be even moral, such as having an affair
and then lying under oath to cover it up. The House Democrats write that "if provoking an insurrection riot "against a Joint Session Congress "after losing an election "is not an impeachable offense, "it's hard to image what would be." The House argues that Trump
attacks the foundations of the democratic process itself. "Under absolutely no
circumstance may a candidate "for any position at
any level of government "respond to electoral defeat
by provoking armed violence." And the House managers, anticipating the arguments
of Trump's defense that he had a First Amendment right to say whatever he wanted
whenever he wanted, the House managers have
two counterarguments that the First Amendment is not a defense to the actions and
statements that were made on January 6th and the
lead-up to January 6th. First they say that President
Trump should be held to a higher standard of
conduct than a private citizen. "No one would seriously suggest "that a president should be
immunized from impeachment "if he publicly championed the adoption "of a totalitarian government, "swore an oath of eternal
loyalty to a foreign power, "or advocated that states secede from "and overthrow the Union, "even though private
citizens could be protected "by the First Amendment for such speech." The House managers argue that interfering with the peaceful transfer
of power with violence is an assault on core
First Amendment principles. And the House's second argument is that there's already quite a bit of First Amendment jurisprudence on the limits of some speech. That speech is not protected where it is "directed to inciting or
producing imminent lawless action "and is likely to incite
or produce such action." I've already covered whether
Former President Trump's speech incited the riot in another video from a criminal law perspective, and there's certainly
arguments on either side, but the impeachment is not about whether Former President Trump
violated a criminal statute and is going to jail. The impeachment trial
literally cannot result in a jail conviction. It says specifically in the Constitution that that is not allowed. It's about whether his conduct
as a whole was so serious that America should send a
message to future presidents and to insurrectionists in whether it should punish the speech that was actually made by preventing such a transgressor from being able to hold office again. And that takes us to the third argument of the Democratic House managers which is, again, anticipating
arguments from the Trump camp. They argue that late impeachments are absolutely constitutional. The House cites the same authorities that we talked about earlier in this video in talking about how late impeachments are both constitutional and
have a fairly long history, and they also rely on old writings of Professor Jonathan Turley, one of Trump's chief defenders. Turley wrote several journal articles that impeaching ex-presidents
is constitutional. - [Man] Professor Turley argued that the House could have impeached and the Senate could
have tried Richard Nixon after he resigned. "Future presidents could not assume "that mere resignation would
avoid a trial of their conduct "in the United States Senate. "No man in no circumstance
can escape the account "which he owes to the
laws of his country." - Of course, it's also
important to point out that President Trump was not
impeached after he left office. He was impeached when he was in office and now it's up to the Senate to try. And, in fact, as many have pointed out, Mitch McConnell could
have allowed the Senate to conduct the trial before Former President Trump left office. But this is not a case of
the impeachment happening after the resignation or after
the official has left office, the impeachment, the indictment
phase already happened while Trump was president. Of course, Turley has been
featured heavily on Fox News arguing the exact opposite
of his earlier views without saying why and how his hundreds of pages of
arguments are now false. But Jonathan Turley is
going to Jonathan Turley. - What they're citing is an
article from 21 years ago. - And the House managers' arguments are also sound in classic
penological theory, one point arguing- - It's making sure that
no future official, no future president does
the same exact thing President Trump does. - What they're arguing
is in fact deterrence, both individual and general. They want to make sure that
Former President Trump himself never has an opportunity to
do the things that he did, as well as making sure that no one like Former President Trump does it in the future as well, as well as the common
justification of punitive measures, punishing Former President Trump for the actions that he did undertake. Those are the classic reasons as to why you would
incarcerate someone in jail in the first place. So that takes us to Former
President Trump's arguments. The House impeachment
managers cite Trump's actions and words and conduct from before, during, and after the riot. Trump, on the other hand, has chosen to focus on narrow issues of whether his January 6th
speech would have made him liable for the actual crime of incitement of imminent lawless action. Trump camp argues that President Trump did not commit the crime of incitement and focus on the text of
the January 6th speech. Trump argued in his brief, "Words do matter "and the words of President
Trump's January 6th speech "speak for themselves. "Of the over 10,000 words spoken, "Mr. Trump used the word fight "a little more than a handful of times "and each time in a figurative sense "that has long been
accepted in public discourse "when urging people to
stand and use their voices "to be heard on matters important." As the Trump camp points out, the former president
spoke for about an hour but never advocated for violence or told anyone to get their weapons. Although he told them to
head over to the Capitol, he did not go with them nor did he tell them
to storm the building. And the Trump camp is focused on language that doesn't fit the
House managers' narrative, focusing on statements like, "I know that everyone
here will soon be marching "over to the Capitol building "to peacefully and patriotically
make your voices heard." And the next big argument
that the Trump camp makes is that the Senate simply
doesn't have jurisdiction over a former public official, citing the constitutional
text we referred to earlier. Former President Trump's
lawyers spent most of day four laying out their defense as it was. And by the way, I'm not
particularly impressed by Trump's legal defense team here. With respect to Bruce Castor, he legitimately seemed to be confused at many different times. It seems like he winged everything, and often when it was clear he was not talking from his notes, he would go back to his notes, and sometimes things that he
had written out ahead of time were worse than the things
he was just talking about off the cuff. - You know, it's interesting because I don't wanna steal the
thunder from the other lawyers, but Nebraska you're going to hear is quite a judicial thinking place. - With respect to David Schoen, he seemed to think that
the louder he yelled the more persuasive he was, and he was very wrong about that. And then there's Michael Van Der Veen who is a personal injury lawyer who absolutely looked and sounded like a personal injury lawyer who had absolutely no understanding of the grand stakes that he was on. - These depositions
should be done in person, in my office, in Philadelphia. - This was a B team of lawyers filling in for Former President Trump after his first legal team quit en mass, and it absolutely showed. And many times the Trump team argued that Former President Trump
was not afforded due process and therefore the whole thing
should just be thrown out. This argument I find particularly galling because on the one hand they're saying that investigations should be done, depositions should be taken, and at the exact same
time they're also arguing that the whole thing should be thrown out because too much time was taken, too much time has passed, and now Trump is no longer in office and thus there's no jurisdiction for this impeachment at all. And yes, lawyers argue in
the alternative all the time, but that doesn't mean that that's a persuasive tactic to take. And here, as we've
talked about many times, the requirements for a criminal conviction simply don't apply here. The beyond reasonably doubt standard does not apply in impeachments. And there's a lot of confusion about the term incitement itself. Incitement means a lot
of different things. It is, number one, a crime
under most jurisdictions. It's also an exception
to the First Amendment in terms of speech that is not protected by the First Amendment. It is a political offense as to something that the Senate might feel is unbecoming of the president himself and thus warrants removal or being barred from public office. And it's also being
used as just a shorthand for everything that happened. And because you have these
different definitions going across purposes, a lot of the different arguments are like ships passing in the night. And it's all bound up in this question of whether the president should
be held to a higher standard than your average citizen or a lower one. And remember, the vast
majority of legal weight says that the president
doesn't have to be guilty of an actual crime to be impeached, removed,
and barred from office. And playing off of that confusion, the Trump lawyers created a video montage of Democrats using the
term fight in context that don't rise to the
level of incitement. Of course, many people argued the counter that of course it depends on the context, that it also depends on the intent. None of these Democratic
members of Congress ever had the intention to
actually incite violence, that the violence was not incited, no riot ever came about of these words, and that the context was
incredibly different. But the point is valid
that different words can mean different things
in different contexts, but it really feels like these arguments were a false equivalence
and a lot of what aboutism. And apart from the due process arguments, the Trump lawyers argued
extensively about hearsay, and this makes me want
to pull out my own hair for several different reasons. First of all, as we've talked
about many different times, the Senate can use
whatever standard it wants, and generally it has almost
always allowed hearsay as evidence in impeachment trials. But more to the point, almost all of the hearsay
statements at issue here would be admissible in trial because they weren't being used for the truth of the matter asserted, which is necessary for hearsay. But rather, they were being used for the state of mind of
Former President Trump and his intent, which is a non-hearsay purpose
to the statements themselves. So yes, they were out-of-court statements, but not all out-of-court
statements are inadmissible, and the vast majority of the
things being discussed here would probably have been admissible. And putting apart the fact
that almost all of the senators who are participating
in this particular trial were firsthand witnesses and the hearsay wasn't really necessary for them to make their decisions because they were a part in person to witnessing all of this stuff. But perhaps the biggest
irony is that the defense extensively used hearsay themselves. The entire defense case, because President Trump wasn't
willing to testify himself, relied on out-of-court statements. So if you're going to exclude a whole bunch of the prosecution's case on the basis they're
out-of-court statements, then you have to disregard
the entire defense case. Now there was big news
after the fourth day of the impeachment trial when Representative Herrera
Beutler, a Republican, came forward and relayed part of the conversation that she had with Representative Kevin
McCarthy of California. This conversation seemed to dispute basically everything the defense had said about Former President Trump's knowledge about what was going on at the time. - In the middle of the insurrection, when House Minority Leader Kevin McCarthy called the President to beg for help, President Trump responded, and I quote, "Well, Kevin, I guess these people "are more upset about the
election than you are." - Now if this were a court case it is possible to get double hearsay or hearsay within
hearsay to be admissible, you just need an exception for
both layers of the hearsay. And arguably that's met, because between Trump and McCarthy that would go to President
Trump's state of mind, and as between McCarthy
and Herrera Beutler that could be a present sense impression or excited utterance. Based on the circumstances, there would be an exception
to the hearsay rule and arguably that statement
would be admissible in court. And that takes us to the third argument that the Trump lawyers make, which is that an impeachment
of a private citizen is really a bill of attainder. Now this is an argument that probably made a lot of first-year law
students extremely happy, because bills of attainder
don't come up that often. But Trump argues that the
impeachment trial by the Senate of a private citizen violates Article I, Section
9 of the US Constitution which states that "no bill of
attainder shall be passed." What is a bill of attainder? Well, that is basically
a prohibition on Congress from enacting any law that
legislatively determines guilt and inflicts punishment upon
an identifiable individual without provisions of the
protections of a judicial trial. Now according to Trump, this impeachment and every impeachment is a bill of attainder because it allows the legislature to make a finding of guilt. A bill of attainder is the
kind of legislative act that only has effect when it's adopted by both houses of Congress and signed into law by the president. Impeachment and removal,
by contrast, though, can be accomplished by Congress alone, and most importantly it's written into the text of the Constitution. So if a bill of attainder were to nullify the impeachment clause, that would be a big problem, and there's no interpretation
of the Constitution where that can possibly be correct. And this means that Trump is
legally incorrect in saying that a conviction of the Senate counts as a bill of attainder. The Senate isn't voting on any such bill, it's putting Former
President Trump on trial for impeachment, which is part
of the Constitution itself. The President Joe Biden doesn't
have a role in impeachment. And there've been all kind
of bad faith arguments about saying that you
can't deprive someone of life liberty or property
without due process, but the due process is the
impeachment trial itself. And on top of that, this is not a depravation of the normal Fourth Amendment rights. It's written into the Constitution that you can have an impeachment that has the punishment
of preventing someone from being able to hold office again. It's written into the Constitution itself. But this distinction between a bill of attainder
and an impeachment goes back far into English common law. Under the law, English
monarchs would have to sign off on any bills of attainder. And impeachment was added as a tool precisely because it did
not need royal consent, it gave Parliament the
ability to constrain the executive power. And the American Founders were not fond of bills of attainder because they effectively
allowed the government to a make a post-hoc decision about punishing someone criminally as an individual private citizen. But they really liked impeachment because they feared a monarch coming to the American executive. This was the whole reason for
the Revolution to begin with, that they wanted to
cast aside the monarchy. So this takes us to
one of the main thrusts of the Trump lawyers, which is that the First
Amendment prohibits impeachment for words. Trump argues that the
impeachment invites senators to violate the First Amendment principle of freedom of speech. And Trump says that impeachment itself is always constrained by free speech. "The Constitution must, at a minimum, "serve as a limitation on
the ability of Congress "to impeach for high
crimes and misdemeanors." Here, Trump is essentially
saying that the government, i.e. the House of Representatives, is trampling on his free speech rights by impeaching him for
things that he said and did. And the crux of this argument is that Congress cannot impeach a person for constitutional conduct. And if we tried to apply
this principle consistently, then other articles of impeachment
against other presidents would also have to be rejected. Bill Clinton arguably had a Fourth and Fourteenth
Amendment privacy right to consensual sexual
conduct with another adult and a First Amendment
right to lie about it. But the problem is there's
all kinds of legally and morally impermissible acts that are based solely in speech. Defamation is a solely speech-based act. For the most part, bribery tends to be a speech-based act. When you're making a bargain
with an elected official for their own pecuniary interests, that's based in speech. And there's basically no argument
that some of these things wouldn't give rise to impeachment. And the Trump lawyers are trying to blend legal and political arguments together. The Trump lawyers accused
the House managers of creating an impeachment process that yields to the "unbridled
whims of House managers." But a bipartisan group of
legislators in the House believed that Trump's conduct
and words were impeachable. Trump argues that they were all motivated by Trump derangement syndrome, but this isn't really a legal argument, it's a political one, and it's one that of
course he's free to make but it doesn't seem to hold
water on a legal basis. The House of course argues that it didn't impeach President Trump because he expressed an
unpopular political opinion, but rather it impeached him because he was willfully
inciting a violent insurrection against the government. They argued, "We live in a nation "governed by the rule of law, "not mob violence incited by presidents "who cannot accept their
own electoral defeat." And of course President Trump argues that he did not commit a violation of law. Trump argues the same
position in this impeachment that he did the first time around, that a president can only be impeached if he violates a criminal statute. The Trump lawyers argue that
the only relevant inquiry is whether Trump's January 6th speech incited people to imminent lawless action, and to determine whether it did we should not consider
the broader environment in which this speech was actually made, we should only look narrowly
at the actual text itself. And on the fifth day of
the impeachment trial, the big drama came as a result of the Democrats winning a vote to be able to call witnesses at the trial but then backing down, accepting an stipulation of
the Herrera Beutler statement, and then moving forward
with closing arguments. Now, personally, I would have
liked to have seen witnesses. I think that it would have been
good for historical reasons to lay even more of a factual foundation for everything that went on and to be able to force
some of the testimony related to things that
Former President Trump may or may not have been thinking and when he was thinking them. But at the same time it's
probably not the case that witnesses would have
actually changed the result of this impeachment trial. And at the end of the day 57 senators voted to convict
Former President Trump, which was not enough for the 2/3 majority needed for conviction. And the number is a record. There were seven Republican senators who voted to convict Trump, and that is seven times greater than the previous number of senators who voted to convict a
president of their own party, which that number was set
by Senator Mitt Romney just a year ago in President Trump's first impeachment trial. So the question is, what happens next? I suspect that there will
probably be commissions, subpoenas, investigations,
and criminal prosecutions. Remember, the impeachment
punishment is extremely narrow. It's simply removal from office and being barred from running again. Theoretically, impeachment itself is dead. If under these circumstances the president cannot be impeached, then it doesn't seem like
there is any realistic scenario where any president
will ever be impeached, which in itself is I
think a worrying trend. And even though Mitch McConnell voted to acquit President Trump, he still recognizes that Trump is liable for everything that he did in office and seems to be almost asking prosecutors to criminally prosecute
Former President Trump. - They did this because they'd
been fed wild falsehoods by the most powerful man on Earth. - And bad news for those that want to invoke the
Fourteenth Amendment to bar people who have participated in sedition against the United States from holding office. The 57 Senate votes that were secured to convict President Trump on impeachment are not enough votes for cloture, so given that the filibuster still exists, there's not going to be enough votes to actually bar him under
the Fourteenth Amendment, assuming that the votes stay the same. But there is some good news. Given that this was
truly a bipartisan effort with both members of the House
and seven Republican senators who voted for conviction, this is probably a green light
for criminal prosecutions. Normally you would assume
that state district attorneys or the US Attorney General would be extremely reluctant to engage in a criminal
investigation of a former president. But given the overwhelming
bipartisan support, it sort of signals to those
law enforcement officers that you can proceed if there is indeed a true criminal violation
by Former President Trump. And there's also more good news in that the threat of impeachment probably restrained Former President Trump in the last days of his presidency. So generally I'm feeling pretty good about this whole affair. Yes, I wish they had called witnesses and made the record even more clear and, frankly, rubbed the
noses of the Republicans in their own filth for
a little bit longer, but the record was already 1,000% clear. This was not a failing
by the House managers to make a case. The outcome was already a fait accompli. Mitch McConnell wouldn't allow trial while Trump was still in office and then hid behind his
own political maneuvering as a reason for why he
couldn't vote for conviction. And let's face it, sometimes even futile
gestures are worth doing because it's the right thing to do. Seven Republicans voted for conviction and that's absolutely no small feat in this hyper-partisan world. This is not a win for the Trump camp. They should not be high fiving, thinking that they did a good job here. And I think history will be
absolutely clear on this point. It will show that the acquittal was a miscarriage of justice, just like the acquittal of Andrew Johnson and the acquittal of Donald
Trump the first time around. But let me know if you
agree with my analysis, leave your objections in the comments, and check out this playlist over here where I talk about all of the legal issues that happened in the Trump administration that led up to the impeachment. So click on this playlist,
or I'll see you in court.
Legal Eagle is one of my favorite YouTube channels.
Love this guy