Klarman on Impeachment and Trump

Last Friday, February 5, Lawrenceville welcomed Professor Michael Klarman to discuss the topic of impeachment in the context of former president Donald Trump’s impeachment.

Last Friday, February 5, Lawrenceville welcomed Professor Michael Klarman to discuss the topic of impeachment in the context of former president Donald Trump’s impeachment. Previously, Klarman had spoken to Lawrenceville as the Weeden Lecturer in 2017 and as a visiting speaker in the Honors U.S. History courses during the virtual Spring Term.

Klarman began his presentation by providing a history of impeachment and how the process came to be defined. The Framers at the Philadelphia Convention initially believed that no removal provisions would be necessary in the Constitution. However, according to Klarman, they soon realized this could result in an unfit or corrupt person holding office, and thus they ultimately came to the consensus that “neglected duty or misused power by the president would result in impeachment.”

Klarman then said the Convention believed that those terms were not broad enough because the President could do things that “constituted removal but did not amount to treason or bribery...and so finally, the Convention defined treason, bribery or high crimes and misdemeanors as the basis of impeachment.”

Next, Klarman discussed the relevant impeachment provisions in the United States Constitution, contextualizing them to the impeachment of Donald Trump. “The main argument in defense of Trump is two-fold: one is that you can only impeach people who are still in office...and the second is a First Amendment argument,” explained Klarman. Elaborating on the first of two arguments, he said, “Because he’s already out of office, [he’ll argue] that he simply can’t be tried or convicted.”

Next, Klarman provided various textual arguments against the first of Trump’s two-fold defense, the strongest coming from British precedents. He provided the example of Warren Hastings, a British governor in India who was impeached after leaving office. In Britain, “impeachment clearly applied after the term in office had ended in Britain,” he said.

Following his discussion of impeachment provisions, Klarman discussed Trump’s First Amendment argument, providing three counter responses to this argument. First, he said that “it is not clear that impeachment trials in the House [of Representatives] or Senate are bound by any First Amendment constraint in the same way that a criminal prosecution would be.”

On his second reason, Klarman noted that “public officials...performing their jobs are not protected by the First Amendment in the same way ordinary citizens are—a police officer [who] criticizes the president or mulls over the possibility of assassinating the president would almost certainly not be engaging in protected speech.” Therefore, he said, “the President of the United States expressing [similar] views ought not to be immune from sanction.”

Finally, Klarman argued that even if Trump were to be fully entitled to First Amendment protection, it is unlikely that the relevant case law, the Brandenburg vs. Ohio 1969 case involving the Ku Klux Klan in Ohio, would protect him. In the aforementioned case, the court ruled that “the First Amendment does not protect speech ‘directed to inciting or producing imminent lawless action that is likely to incite or produce such actions.’”

Klarman concluded his presentation with a reflection on why Democrats want to pursue Trump’s second impeachment, saying, “As a matter of principle, the President incited a mob to attack the Capitol and try to block the counting of [the] electoral vote count, and the Democrats believe they have to make it clear this is unacceptable; secondly, disqualification from office [is] something that some regard as important...and there is a political reason as well; [the Democrats] want to force Republicans to take a stand on the record.”

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