Why Trump Isn’t Being Charged with Treason

Here we go again! After having two presidential impeachment trials in the United States’ first 231 years, the Senate is now about to start its second trial of Donald Trump in just over 12 months.

While we all developed great expertise from taking the 2020 class Trump Impeachment 101, there are all sorts of new issues for the 2021 version of the course. So let’s do a lightning round of the major constitutional issues that you need to know to be an expert and impress your friends at your next Zoom happy hour.

Donald Trump is no longer President. Can there be an impeachment trial after he’s left office?

This one is straightforward: Yes, he can be tried after he’s left office. The Constitution makes this eminently clear by the use of the word “all” in this sentence: “The Senate shall have the sole power to try all impeachments.” There is no equivocation in that sentence. President Trump was properly impeached by the House because he was the President at the time of impeachment. Thus, the Senate can try this impeachment. Any interpretation of the Constitution claiming that the Senate cannot try this impeachment reads the word “all” out of the Constitution.

Anyone arguing against trying Donald Trump now also ignores constitutional history. In 1876, the Senate tried former Secretary of War William Belknap after he resigned his office. Belknap argued that he couldn’t be tried because he was no longer in office, but the Senate rejected this argument. Belknap was ultimately acquitted, but the precedent was set that an official no longer in office can be tried by the Senate.

Why wasn’t Donald Trump charged with treason?

The allegation here is that the Donald Trump incited an insurrection against the United States government. That sure sounds like treason! However, the Constitution defines one crime (the rest come from federal or state statutes) and that crime is treason. It is strictly defined as follows: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

This is where a lot of disagreement emerges. Some scholars think that this clause requires helping a foreign enemy, so that there is no way what happened on January 6th could be considered treason. Others think domestic insurrection might also qualify, but one problem is an 1851 precedent that indicates that there needs to be an intent to overthrow the government to prove treason. Were the rioters at the Capitol trying to actually overthrow the government? Or were they merely trying to disrupt a government function? All of this gets very complicated and would almost definitely bog down the trial, which is probably why the House impeachment team decided not to bring a specific treason charge and instead relied on the catch-all “high crimes and misdemeanors” charge. That’s a much safer bet.

Does the First Amendment prohibit holding Trump accountable for his insurrectionist speech?

Trump’s lawyers are going to argue that the First Amendment protects him from being held accountable for his actions. After all, he himself didn’t storm the Capitol; he used his words to incite others to do so. There are indeed a small number of legal scholars who believe that the First Amendment protects President Trump; however, a bipartisan group of almost 150 lawyers and scholars circulated an open letter last week explaining why the First Amendment has no applicability here. (Full disclosure: I signed the letter.)

The basic argument is twofold. First, impeachment is a completely different penalty than a criminal law or a civil lawsuit. In fact, most of the things officials would be impeached for will be their speech — orders to another official, statements about policy, interactions with foreign officers. They aren’t being thrown in jail, which would violate the First Amendment. Instead, they would be removed from office and/or disqualified from further office. This is not what the First Amendment is about. Second, incitement to violence has always been exempt from the First Amendment. It’s not the same, but it’s along the lines of the idea behind the classic “screaming ‘fire’ in a crowded theater without justification” example. Some speech can be punished, and incitement to violence is one such example.

Can Trump be disqualified from office by majority vote?

Yes . . . but no. The Constitution is clear that it requires two-thirds of present Senators to vote for a conviction. Disqualification is covered in a different clause of the Constitution which says that judgments in impeachment trials “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.”

What history and agreed-upon interpretation tells us is that there are two separate votes. At a minimum, there needs to be a two-thirds vote to convict. Then, after the conviction, there can be a simple majority vote to disqualify from future office. Thus, it is correct that a simple majority is required to disqualify Trump from ever holding office again, but that is only after the much higher hurdle of a two-thirds conviction.

Can Trump be forced to be a witness in the trial?

If Trump were President, there would be a very serious question of constitutional law in having the Senate force the President to testify. If the Senate needed Presidential records at trial, there would be similar serious constitutional issues. However, at this point in time, Trump is a private citizen, and the Senate is not asking for any Presidential records. Thus, these serious constitutional issues just aren’t in play.

The Fifth Amendment also doesn’t help Trump here. Normally, criminal defendants don’t have to take the stand at their own trials. But by its text, the self-incrimination clause of the Fifth Amendment only applies to criminal trials, which an impeachment trial is not. Not only does the Fifth Amendment not give him cover from testifying, but he also can’t take advantage of the court-made Fifth Amendment rule that refusal to testify cannot be used against you.

The House impeachment managers asked Trump to appear at the trial, and he responded that he would not do so voluntarily. If the Senate wants to subpoena him to force him to appear, it could. However, the chances of this are slim because Trump would probably fight the subpoena, which could extensively prolong matters.

Here’s the constitutional bottom line: this post-Presidency trial is constitutional; a treason charge would be very complicated which is why it isn’t being brought; the First Amendment doesn’t stop Trump from being tried; he can be disqualified from office by majority vote but only after a two-thirds conviction; and he can be forced to testify (but probably won’t be).

If you’ve got all this, you’ve passed this year’s course, Trump Impeachment 102.


David S. Cohen is a professor of law at the Drexel University Thomas R. Kline School of Law.

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