The No-Show Option: Trump Could Sit Out The Senate Trial And Still Prevail

The No-Show Option: Trump Could Sit Out The Senate Trial And Still Prevail by Jonathan Turley

Below is my column in the Hill on why President Donald Trump might want to consider skipping the upcoming Senate trial. This is an expanded version of that column. Rumors continue to suggest that Trump is considering Rudy Giuliani as counsel — a role that would be viewed as open contempt to the Senate and, as Karl Rove noted, would increase the chances of a conviction.  There is a better defense: no defense.

Here is the column:

 

In a matter of days, this country will face an unprecedented Senate trial. The Senate not only will try a president for a second time but will do so after he has left office.

Vice President-elect Kamala Harris assures us the Senate can politically “multitask” to deal with an impeachment, an incoming Biden administration and a pandemic. However, the threshold question is whether this is constitutionally one of those tasks — and for soon-to-be citizen Donald Trump, the best defense may be no defense at all.

In fairness, people on both sides are struggling to deal with this novel impeachment. While I have stated that I do not wish to serve as the president’s counsel, I have spoken to members of Congress and the White House on the historical and constitutional backgrounds for a trial.  In my 1999, Duke Law Journal article on impeachment, I wrote that “[t]he Senate majority, however, was correct in its view that impeachments historically extended to former officials, such as Warren Hastings.” See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1-146 (1999). It indeed was used retroactively in Great Britain. Yet, there are significant differences in the use of impeachment in both countries. Indeed, the colonial impeachments were strikingly different in many respects. As I noted in the Duke article, “Even if the only penalty is disqualification from future office, the open presentation of the evidence and witnesses represents the very element that was missing in colonial impeachments.” This has remained an open question and much contested in the United States as I noted in my later North Carolina article.  Jonathan Turley, The    “Executive    Function”    Theory,    the    Hamilton    Affair    and    Other   Constitutional Mythologies, 77 North Carolina Law Review 1791-1866 (1999).  The point of that piece is that impeachment is not limited to violations of an executive function but can involve other violations like perjury.  We are left with the value of a trial for a public judgment on past conduct and the costs of a retroactive trial on the constitutional system. That has remained unresolved though my views have evolved over the last 30 years on aspects of this question. The prior discussion addressed how impeachment serves a type of dialogic role in our society. Such trials can have value as with Trump. However, there are also serious countervailing costs that are equally evident in the case of Trump.

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