IN THE MATTER OF THE IMPEACHMENT

OF DONALD JOHN TRUMP

DEFENDANT’S MOTION TO DISMISS

This matter comes before the United States Senate on Defendant’s Motion to Dismiss. Because Defendant is no longer president, vice president, or a civil officer of the United States, the Article of Impeachment should be dismissed for lack of jurisdiction.

I. Background

Defendant is accused by the House of Representatives of “Incitement of Insurrection.” This charge results from a riot that occurred on January 6, 2021, during a joint session of Congress. Defendant and others gathered in Washington, D.C., were concerned about various irregularities in the presidential election and the efforts of state courts and state election officials to alter state election law despite the Constitution’s clear command that such matters rest with the state legislatures.

Defendant did address a large crowd of people on that day and stated that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Upon hearing of the events at the Capitol turned from peaceful to violent, the Defendant took actions to curb the behavior. For example, Defendant posted the following on Twitter: “But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt.” Moreover, in the days after January 6, Defendant continued to call for peace and healing: “Now is the time for our nation to heal. And it’s time for peace and for calm. Respect for law enforcement is the foundation of the MAGA agenda.”

On Wednesday, January 20, 2021, Defendant’s term of office ended and he returned to private life. Six days later, members of the House of Representatives delivered the Article of Impeachment to the Senate. At the time of delivery, Joe Biden held the office of President of the United States. Defendant was in private life in Palm Beach, Florida.

II. Legal Argument

Because Defendant is not an elected or appointed officer of the United States, he is not subject to impeachment. The Constitution in Article II, Section 4, provides: “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.” In the Philadelphia Convention, the issue of executive removal was discussed only in the context of a sitting president. For example, James Madison cited instances where after election the president could lose his mental faculties or pervert his administration into a scheme of oppression. Hence, some constitutional method for removal was necessary. A main concern of the delegates was making the sitting president too dependent on another branch of government. Hence, the mention of high crimes and misdemeanors and the supermajority requirement in the Senate.

In Federalist No. 65, Alexander Hamilton described impeachment as an inquiry into the actions of “public men” as opposed to private citizens who are not in office. Importantly, in Federalist 69 Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The logical interpretation of this statement is that while in office the president can be impeached. After he leaves office, legal remedies must be sought in state or federal court systems.

Moreover, in discoursing on Article II, Section 4, Mr. Justice Story in his Exposition on the Constitution describes the constitutional provision as enumerating “who shall be liable to be removed from office by impeachment.” Obviously, a person must be in office to be removed. This is the general context and understanding of impeachment.

Opponents of Defendant’s Motion will no doubt point to Article I, Section 3, which provides: “Judgment in Cases of Impeachment 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.” Hence, they argue that one does not have to be in office to be disqualified from holding another office. Such a reading is a stretch of the text. The natural language is that one must first be in office, be removed by a two-thirds vote in the Senate, and thus be disqualified from ever holding another office of honor.

Although not strictly a legal argument, Defendant expects opponents of his motion to raise the specter that absent the Senate accepting jurisdiction over this matter, then a future official would be emboldened to take nefarious actions on the eve of departure because he could not be tried in the Senate. Defendant submits that if an individual with malicious intent sought to engage in egregious misconduct, say, stealing from the public purse, conviction in the Senate is no deterrent. The Senate, sitting as a court, has no power to imprison, fine, or forfeit assets. The real deterrent to presidential misconduct is the tarnishing of a historical legacy, rather than avoidance of Senate trial and conviction, which is, with due respect, more theatre than legal proceeding.

In summary, the plain language of the text and historical commentary indicate that impeachment is a sword to be unsheathed only against malefactors holding office. The main point of impeachment is to remove the malefactor from office and thus end his reign of folly or crime. Defendant is no longer in office. He cannot be removed from office and is not subject to impeachment.

III. Conclusion

Impeachment is inherently political. Defendant, having already been through a show trial in the Senate that resulted in his acquittal, knows this to be true. However, unlike the prior trial, Defendant is not an officer of the United States. Because Defendant no longer holds public office, he cannot be put on trial in the Senate for allegedly inciting an insurrection. Accordingly, the Senate should dismiss the Article of Impeachment for lack of jurisdiction.

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Some people consider themselves conservatives, others view themselves as progressives, some as socialists, others as libertarians. They support candidates and parties based on the ideologies behind those labels. Republicans (mostly) self-identify as conservatives, and political institutions give them the opportunity to join with others to further those views on the appropriate role of government.

There is an analogy with sports teams. University of Alabama fans love Nick Saban because he’s made the Alabama football team a consistent winner. At my own school, Florida State University, Bobby Bowden was revered for decades for that same reason, but fired before he wanted to go because the team’s performance was declining. It was sad to see him go (everybody loves Bobby Bowden!) but allegiance was to the team. Nick Saban won his first national championship at Louisiana State University. How many LSU fans shifted their allegiance to Alabama after Saban went there? Not many. The allegiance sticks with the team, not the coach.

This should be even more true in government, where outcomes have a direct effect on everyone’s lives. A nation slips into dangerous territory when citizen loyalty shifts from ideas to individuals. Trump lost the election. It is time for Republicans to move on and support politicians who can further their ideas on the appropriate role of government.

Some Republicans might agree with Trump’s claim that the election was stolen from him. Fine. But he still lost, and for Republicans who hold that view, the appropriate response is to work for election reform to prevent stolen elections, not to support Trump. Do you think that mail-in ballots and early voting contribute to voter fraud? Then put your energy into those issues rather than supporting a loser.

We enter dangerous territory when people give their political allegiance to people rather than to ideas. That moves us closer to the types of governments ruled by the Hitlers, Stalins, Maos, Castros, and Putins of the world. Trump has been very effective in shifting the loyalties of some Republicans from the conservative ideas of the party to his own persona. This is unambiguously bad for the Republican party.

One reason term limits are desirable is that they are a check on having people’s loyalties shift from ideas to individuals–they are an impediment to having the United States become like Russia, ruled by Putin, or China, ruled by Xi. Like it or not, Trump lost the election, and it is time for Republicans who are committed to the ideas of limited government that have defined the party to move on—to support their party’s ideas rather than the man who lost the election.

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This is not going to happen, but I would not be unhappy if it did, and my opinion has little to do with President Trump. It would set a precedent making it easier to invoke the 25th Amendment in the future, which would reduce the discretionary power of the president.

My view has little to do with President Trump, who has less than ten days in office, and everything to do with curbing the expanding powers embodied in the presidency. As originally designed in the Constitution, the president is the head of one of three branches of government that were designed to check and balance each other. Throughout the twentieth century and into the twenty-first, the powers of the presidency have been expanded, lessening those checks and balances.

The Amendment says the president can be removed from office if the vice-president and “principal officers” determine that “the President is unable to discharge the powers and duties of his office,” and this website says the authors of the Amendment deliberately left vague what would constitute being unable to discharge the powers of the office.

President Trump has provided an excellent opening for applying the 25th Amendment, in that he is not physically or mentally incapacitated, but has taken some questionable actions since the election, such as pressuring Vice President Pence to refuse to certify the electoral votes and inciting a mob to invade the Capitol. Invoking the 25th Amendment now would set the precedent that it can be used in cases where a majority of the president’s cabinet view the president’s actions as inappropriate.

If those actions were taken as evidence that the president was unable to discharge the powers of the office, a precedent would be set that inability, in this context, can mean more than just physical or mental incapacitation. Keep in mind that the people making that determination would be the president’s political allies: the vice president and cabinet officers handpicked by the president. This would be a valuable check on the powers of the presidency, because the check would come from the president’s own inner circle.

Along similar lines, some people have been critical of the impeachments of Presidents Clinton and Trump, claiming they were frivolous and politically motivated. But here again, the precedents set send a message that Congress may use its powers to check and balance the powers of the presidency.

The mechanisms embodied in the 25th Amendment, and the impeachment powers of Congress, are reminders that the president has limited powers that can be constitutionally revoked.

In today’s political environment, there is an additional element of intrigue surrounding the 25th Amendment. Democrats are more likely to support removing President Trump from office, while Republicans are less likely (despite Trump losing political allies at what appears to be a fairly rapid clip). Down the road, it has been suggested that applying the 25th Amendment now to President Trump would make it easier for Democrats to apply it later to President Biden, which would elevate Kamala Harris to the presidency–something the more left-leaning elements of the Democratic party would like to see.

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As an initial matter, who would ever have believed that when he descended the escalator of Trump Tower on June 16, 2015, that Donald Trump had a chance to become the president? Jeb Bush or Marco Rubio was supposed to face off with Hillary Clinton in the 2016 election. Sen. Lindsey Graham, as he watched the voters embrace Trump, averred that “My party has gone batshit crazy.”

In a sense, the people did go crazy—crazy for an opportunity to vote for someone who had ideas different from Democrats. The post–Cold War GOP was in agreement with the Democrats on issues such as trade, immigration, and foreign policy. The parties pretended to have disagreements of fiscal matters, with the GOP calling for tax cuts and the Democrats for higher rates on the rich. All the while only about 35 percent of the budget was discretionary spending. The bulk of the budget (military spending, entitlements, interest payments, and so forth) was and is on autopilot.

Trump tapped into Middle American dissatisfaction with trade policy and an “invite the world / invade the world” immigration and foreign policy. During 2016 primary debates, he was the only Republican candidate on stage to challenge the orthodoxy that George W. Bush’s decision to invade Iraq and topple Saddam Hussein was heroic. Trump said it was disastrous. Little Marco and Jeb could only stand there with mouths agape.

Middle Americans, tired of seeing factories close and move overseas, concerned that the flow of people from our southern border was becoming a flood, and missing sons and daughters suffering long deployments to the Middle East, found a champion in Trump. He was offering alternative policy proposals on issues that mattered to them.

Did Trump have warts? Absolutely. Stormy Daniels, a potty mouth, narcissism, embarrassing tweets, a personality that was anything but statemanesque. But the people didn’t seem to care. They were desperate for something different than a Romney-Ryan GOP, a party that had more in common with the Democrats than the average Republican voter.

Trump did the unthinkable. He won 30 states, including the “blue wall” of Michigan, Pennsylvania and Wisconsin, which had been Democratic gimmes for decades. Hillary’s coronation was canceled.

Whether it was from political inexperience or stupidity, Trump proceeded to staff the White House and other positions with individuals who would have been a perfect fit for a Romney-Ryan administration. Nikki Haley to the UN, Mike Pompeo as director of the CIA and later Secretary of State, and eventually John Bolton as national security advisor. Not a team to have in place if you are pursuing an America First agenda.

This misstep, coupled with constant attacks from the media and political opponents (Russiagate, impeachment, etc.) incensed that Hillary Clinton was not president, made it difficult for Trump to deliver on many of his promises. Nonetheless, he did manage to avoid additional foreign wars (Hawks had eyes on Iran) and has reduced the number of American forces in Iraq, Afghanistan, and Somalia. Trump has built 423 miles of border wall, but this is a small fraction portion of the boarder with Mexico. Folks are still arguing whether the tariffs (imposed on 16.8% of all imported goods) will, in the long-run, help or hurt the U.S. economy. The economy was humming along pretty well before COVID-19 and state lockdowns knocked the engine from the tracks.

Undoubtedly, establishment GOP leaders hope to go back to a Romney-Ryan Republicanism and pretend that Donald Trump never happened. Will Middle America let them do it? Only if the Republicans accept that they will never win the presidency for the foreseeable future. While this analysis from 2016 is dated, the point remains: the GOP candidate is and will continue to be an underdog in a presidential race. The path to victory is easier for a Democrat than a Republican. The GOP has to recreate something of the 2016 electoral map, and to do so it needs the rust-belt states that Trump flipped in 2016.

Abandoning the issues that appealed to Middle Americans in 2016 for Romney-Ryan Republicanism is not the answer. Rightly or wrongly, Middle Americans believed that Trump cared about them and their issues. Exit polls for 2020 showed that concerns over COVID and the media’s constant bashing of Trump’s COVID policy probably killed Trump’s momentum in the blue-wall states he won the previous election. But for the pandemic, the outcome of the 2020 election likely would have been different.

Bottom line: The GOP needs Middle Americans to be excited about their candidate and to vote in large numbers. This will only happen if GOP leadership can put aside its hatred for Trump and examine why the bully from New York City excited the electorate in 2016, and even in defeat in 2020, won 74 million votes.

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[I]n recent years, a series of polemics grounded in poor scholarship has vilified our Founders and our founding. Despite the virtues and accomplishments of this Nation, many students are now taught in school to hate their own country, and to believe that the men and women who built it were not heroes, but rather villains. This radicalized view of American history lacks perspective, obscures virtues, twists motives, ignores or distorts facts, and magnifies flaws, resulting in the truth being concealed and history disfigured. Failing to identify, challenge, and correct this distorted perspective could fray and ultimately erase the bonds that knit our country and culture together.

The 1776 Commission, among other things, is charged to produce a report on “the core principles of the American founding and how these principles may be understood to further enjoyment of ‘the blessings of liberty’ and to promote our striving ‘to form a more perfect Union.'” It is also supposed to “advise upon, and promote other activities to support public knowledge and patriotic education on the American Revolution and the American founding.”

It’s unfortunate that Trump did not create and appoint the commission earlier in his term. With Biden’s presidency and his obeisance to wokeness, it is unlikely that the Commission will ever meet or function as intended. Biden will likely scrap it.

No matter what Biden does, I would suggest that the Commission (defunct or extant) meet, work, and produce a report and advice of the kind requested by President Trump. With the academy, media, and bureaucracy firmly enthralled with the Left’s cultural Marxist agenda, we need a powerful restatement of First Principles and guidance on how teachers can introduce students to the rich history of the American Revolution.

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When Justice Antonin Scalia passed away in the last year of President Obama’s administration, Obama nominated Merrick Garland to fill Scalia’s seat, but the Republican Senate refused to give his nomination a hearing, arguing (as the Democrats are now) that any Supreme Court appointment should be made after the election, by the winner of the election.

According to the Constitution, President Trump has the power to nominate Justice Ginsburg’s successor immediately, “with the advice and consent of the Senate.” The election year argument against making the appointment is somewhat weakened because President Obama nominated Garland in an election year, although the Republican Senate did not confirm him. But arguments about whether President Trump “should” make a nomination are pretty much irrelevant, except for their rhetorical value, because he has the constitutional power to do so.

While Garland’s nomination stalled, a nomination by President Trump likely would not be, unless a sufficient number of Republican Senators declared their opposition.

The biggest difference between Obama’s nomination and Trump’s is that Obama was facing a Senate with his party in the minority, whereas Trump is facing a Senate with his party in the majority. He likely has the votes to get his nominee confirmed, whereas President Obama did not.

Even if Trump wins the election, waiting to make a nomination could make things more difficult for him, especially if the Democrats were to gain a majority in the Senate. If he wants to “win” on this issue, he should make the nomination now.

Another factor to consider is that if the election is contested, its ultimate outcome might be decided by the Supreme Court, as the presidential election of 2000 was. Trump might like to have another friendly Justice on the Court were that to occur.

I’m not passing judgment on whether nominating a candidate now would be the “right” thing to do, or whether waiting would be the “right” thing. In politics, that’s pretty much irrelevant. You take whatever opportunities you have to “win,” because in politics some win while others lose, and politicians naturally want to avoid being on the losing end.

There is a larger lesson that is playing out in this one specific issue, which is that politics is adversarial, and any political decision produces winners and losers. Thus, politicians have the incentive to take whatever opportunities are offered to put themselves on the winning side of issues.

This contrasts sharply with market activities, in which people transact voluntarily with each other for their mutual gain. Nobody has to engage in a market transaction, so individuals in markets naturally want to entice others into making mutually advantageous exchanges by offering them a chance to increase their well-being by participating in transaction.

Market activity is based on agreement and mutual benefit. Politics is based on conflict, and trying to win by preventing others from getting what they want. The more we rely on markets and the less we rely on politics in our interactions, the more peaceful and harmonious will be our society.

President Trump will make a Supreme Court nomination, not because it is the right (or wrong) thing to do, but because the Republican Senate gives him the opportunity for a win—an opportunity that might not exist after the election. That’s politics. Any other arguments for or against simply amount to empty rhetoric.

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Hoping to make up for lost time, President Trump recently signed four executive orders to lower the prices for many important drugs. He announced last month, “I’m signing four sweeping executive orders that will lead to a massive reduction in drugs costs” and “completely restore the prescription drug market.”

President Trump’s first order calls for the Department of Health and Human Services to guide federally qualified health centers to provide cheaper insulin and injectable epinephrine (the drug used to treat severe allergic reactions found in EpiPens) for low-income patients. His second order calls for the HHS to permit more importation of drugs from Canada and the European Union. His third order calls for the elimination of “kickbacks” for health plan sponsors and pharmacy benefit managers (PBMs), who often serve as negotiators and middlemen between drug producers and healthcare and health insurance providers.

His fourth order, which President Trump calls to the “granddaddy of them all,” requires Medicare to purchase drugs at the same prices found in “favored nations.” By purchasing drugs at comparatively lower prices found in other countries, he hopes that U.S. patients will pay similarly lower prices.

Each of President Trump’s orders addresses important and ongoing issues within the U.S. healthcare system. Insulin and EpiPen prices have risen considerably in recent times. Prescription drugs are often significantly cheaper in other nations. Some PBM negotiation tactics provide more financial benefits for the negotiators than for patients.

Unfortunately, the president’s executive orders to solve these healthcare woes have little chance of making prescription drugs cheaper. Further, many of these ideas have been recently tried and found little success.

In October 2018, President Trump implemented an international pricing index model to help Medicaid patients to receive the same drug-discounts that many producers provide in other countries. Despite his efforts, drug prices have continued to climb.

Last May, Colorado became the first state to cap co-payments for the purchase of insulin. State law limited co-payments to $100 a month while expecting health insurance companies to “absorb the balance.” A Denver Post article last February found that insurance providers had “absorbed the balance” by exploiting increasing premiums and exploiting loopholes in the laws to make financial ends meet. Consequently, many diabetics in Colorado are still struggling to balance their finances and health.

State-level failures to make insulin more affordable cast doubt as to whether an executive order to institute a similar national-level program will be successful.

President Trump also previously initiated policy changes to target rebates between PBMs and drug producers and grant states more authority to import drugs from Canada. Although these efforts have greater potential to lower the cost of prescription drugs, political pressures forced him to abandon these pursuits. As the November election draws closer and politically unpopular policy pursuits become riskier, we can certainly question the president’s commitments to these reforms.

Executive orders to correct for other shortcomings in the U.S. healthcare market have also come up short. In 2017, President Trump issued orders to restructure the Affordable Care Act to provide more affordable healthcare. In 2018, he signed a similar order to lengthen short-term healthcare plans. Although the president’s orders were well intended, research published in Health Affairs in October 2018 found that healthcare premiums increased despite the use of executive orders.

President Trump’s repeated past failures to reform healthcare are predictable. In his brilliant book Priceless: Curing the Healthcare Crisis, economist and Independent Institute Senior Fellow John C. Goodman reminds us that the market for medical care is a complex system, involving too many dynamic components and complicating factors for any individual to grasp fully. Using blunt instruments like executive orders to change the healthcare system naively presumes policymakers can tinker with complex systems and achieve desirable outcomes.

As I have stressed many times in recent posts, executive orders will not lower prescription drug prices. The latest round will be no exception.

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The vicious response that the signatories have received from those who are situated to the left of the left confirms their fears.

It is amazing to see that this centuries-old liberal democracy is being partially subverted by those who should be upholding the humanistic values at the heart of civilization. Hardly a day goes by without the dismissal of journalists or professors, the silencing of writers or speakers, withdrawn invitations, and intimidation campaigns of the Stalinist lineage in America’s cultural and academic life. The recent resignation of Baris Weiss, an op-ed page editor from the New York Times, highlights the powerful effects that this “illiberal environment,” as she calls it, is having on major institutions.

In the 1920s, the French philosopher and novelist Julien Benda published a famous book, La Trahison des Clercs (literally “The Treason of the Clerics” but translated in English as The Treason of the Intellectuals), protesting what he saw as the perversion of the role of the intellectual. He did not use the word “cleric” in an ecclesiastical sense but as a synonym for a learned person. He saw that, departing from the great French intellectual tradition, this illustrious lineage was moving away from the search for truth, beauty and reason, in order to embrace totalitarian ideologies.

Benda wrote as fascism and communism were emerging in Europe and haunting many of the leading minds of his time. It is impossible not to remember, a century later, his desperate allegation when one observes that the American cultural left has imposed a collectivist discourse in which the worth of the individual is gradually being eroded in favor of groups usually defined not so much by their merits, but by how they fit into the victimhood culture in which we increasingly seem to live and which apportions blame for past evils or present failures on anyone who does not belong to, or claim to belong to, the brotherhood of offended persons.

In this ideological construct, the truth is irrelevant and the United States is a mirror of Nazi Germany, instead of a society where black, brown and yellow folks, and both sexes (or their variants), still enjoy a greater chance of social advancement and justice than in any European or Latin American democracy. (This preeminence is not to ignore the injustices and the many imperfections of the system, but to put them in a more adequate perspective.)

In the 1970s the excesses of the left produced a renaissance of two rights. One was rather liberal (in the classical sense) and the other, heavily influenced by the evangelical movement, was intolerant in matters of personal conduct and choice, although reasonably open in economic matters. In the new millennium, the rampant excesses of political correctness—along with factors such as the temporary dislocations of globalization and immigration—caused a right-wing populist reaction. That is why it is so ironic that this fascist left that knocks down statues and censors, or hits, those who do not think alike hates Trump. In many ways it can be said that she created him.

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