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Historic Second Impeachment, Part Two: Questions of Crime and Punishment

February 8, 2021

This week, the Senate commences an historic second trial of former President Donald Trump, stemming from his actions pertaining to the January 6 Capitol riot.1 Against a backdrop of heightened security, threats made against members of Congress,2 and tensions within the Republican Party,3 senators must determine President Trump’s innocence or guilt, as well as what consequences, if any, he should face. Their decisions may affect elections for years to come.4

The Constitution allows impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.”5 The document does does not specifically list those offenses, leaving it to Congress to determine what exactly merits impeachment and conviction.6 The charge by the House of Representatives, “incitement of insurrection,”7 uses language from Section 3 of the 14th Amendment,8 likely foreshadowing certain members’ hopes to disqualify President Trump from holding future office.9 That possibility could turn on whether or not senators find President Trump guilty of incitement.10

The constitutional right to free speech11 sets a high bar for what is considered incitement.12 To qualify as unprotected, criminal speech, President Trump’s words would have needed to encourage immediate lawbreaking and to be likely to produce that lawbreaking.13 While separate criminal charges for incitement are theoretically possible14 (but unlikely15), they are not part of the Senate trial, so senators can decide individually if they want to use the criminal burden of proof or a different, lower standard.16

House Democrats contend that First Amendment protections should not allow a government official to abuse their power and avoid impeachment.17 They argue, on the basis of President Trump’s January 6 speech,18 that his responsibility for the attack is “unmistakable.”19 President Trump’s legal team denies those claims, arguing that those responsible—people who entered and vandalized the Capitol—are being prosecuted and that President Trump did not incite anyone to “engage in destructive behavior.”20 Some of the accused rioters seemingly disagree, blaming President Trump in their legal defense.21 President Trump’s lawyers also assert that the trial itself is unconstitutional22 (a debate addressed in a previous post), although Democrats have criticized this argument as a way for Republicans to avoid judging his words.23

READ: Full Transcript of President Trump’s January 6 Speech, from U.S. News & World Report

In the event of a Senate conviction, President Trump would lose his post-presidency benefits (including his pension for security and travel expenses).24 An additional, simple-majority vote25 in the Senate could disqualify him from holding future office.26 If the Senate does not convict, President Trump’s opponents have considered trying to disqualify him from future elected office anyway, by using Section 3 of the 14th Amendment.27 This provision initially sought to keep leaders of the Confederacy28 (who had “engaged in insurrection or rebellion”29) from holding federal office.30 Experts caution that using this provision against President Trump would almost certainly result in lawsuits,31 as there is little historical precedent and no enforcement mechanism for Section 3.32 University of Chicago law professor Daniel Hemel notes that even if Congress does not pursue this path, citizens in some states could set off a similar legal battle by appealing to their board of elections to bar a candidate from the ballot.33 “All it takes is one registered Republican in New York state to say Donald J. Trump is not qualified to be president because he violated Section 3,” said Hemel.34

Discussion Questions

  1. Do you think President Trump’s actions make him guilty of inciting an insurrection? Why or why not?
  2. What standard of proof should senators use to determine if President Trump is guilty of incitement?
    • People who favor the highest standard of proof note that the Constitution’s use of the words “try” and “convicted” are similar to language used in criminal trials.35 Those who advocate a lower standard of proof assert that an impeachment trial cannot result in criminal penalties such as jail sentences.36 Which argument do you find more persuasive? Why?
    • Based on the highest standard of proof (the one criminal prosecutors would have to satisfy) that President Trump’s actions encouraged and produced immediate lawbreaking, should senators find him innocent or guilty? Why?
  3. House Democrats argue that there is a difference between a private citizen’s right to free speech, in which they could advocate for an overthrow of the government, and a president’s right to say the same thing because it would be an abuse of power.37 Do you agree or disagree? Why?
  4. Based on his actions, do you think President Trump should be disqualified from holding federal office in the future? Why or why not?
  5. If the Senate does not convict President Trump of incitement of insurrection, do you think Congress should try to disqualify him from holding federal office again by using Section 3 of the 14th Amendment, even if doing so results in a lengthy court battle? Why or why not?
  6. Professor Hemel thinks that because Section 3 of the 14th Amendment is not clear about what amounts to an insurrection and how penalties would be enforced, there will be number of lawsuits preceding the 2024 election.38 Hemel said, “My guess is it’ll be made against a bunch of candidates in a bunch of states. For Congress, an important question is, do you want to be in the driver’s seat here setting forth the rules of the road for Section 3 litigation, or do you just want to wait for 2023 to come around and let it rip?”39
    • Which branch of government do you think should settle questions about insurrections and how penalties should affect political candidates? Do you think Congress should pass laws in the next two years to clarify these issues, or do you think judges, up to and including Supreme Court justices, should interpret laws as cases come up?

How to Get Involved

Contact your state’s two senators to share your opinions on whether or not they should convict President Trump of incitement of insurrection, and what (if any) penalties you think he should receive. Find contact information here:

Other Resources

Have students review crowd reactions to President Trump’s January 6 speech.

Ask students to answer the following question in writing and/or deliberate in class: Based on this evidence, did President Trump incite an insurrection? Why or why not?

As always, we encourage you to join the discussion with your comments or questions below!


Featured Image Credit: Senate Television via AP
[1] NPR: https://www.npr.org/2021/01/25/960389715/sen-patrick-leahy-to-preside-over-trumps-senate-impeachment-trial
[2] Associated Press: https://apnews.com/article/lawmakers-trump-impeachment-trial-b9a44a269d6cfeee28e79b46572d28a6
[3] CNN: https://www.cnn.com/2021/01/28/politics/adam-kinzinger-impeach-trump-axe-files/index.html
[4] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/
[5] Constitution Annotated: https://constitution.congress.gov/browse/essay/artII-S4-2-1/ALDE_00000690/
[6] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[7] Representative David Cicilline’s Official Website: https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ARTICLES%20-%20Final%201030%20-%20011121.pdf
[8] Constitution Annotated: https://constitution.congress.gov/browse/amendment-14/section-3/
[9] New York Magazine: https://nymag.com/intelligencer/2021/01/dont-impeach-trump-for-insurrection-use-the-14th-amendment.html
[10] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[11] National Constitution Center: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/266
[12] The Marshall Project: https://www.themarshallproject.org/2021/01/08/a-civilian-s-guide-to-insurrection-legalese
[13] Christian Science Monitor: https://www.csmonitor.com/USA/Justice/2021/0115/Incitement-sedition-and-conspiracy-explaining-Capitol-crimes
[14] Washington Post: https://www.washingtonpost.com/business/insurrection-seditionunpacking-the-legal-issues-from-the-capitol-riot/2021/01/14/4fe1f618-5631-11eb-acc5-92d2819a1ccb_story.html
[15] Christian Science Monitor: https://www.csmonitor.com/USA/Justice/2021/0115/Incitement-sedition-and-conspiracy-explaining-Capitol-crimes
[16] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[17] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[18] The Guardian: https://www.theguardian.com/us-news/2021/feb/02/trump-capitol-riot-powder-keg-impeachment-prosecutors
[19] Ibid.
[20] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[21] Yahoo! News: https://www.yahoo.com/news/lawyers-for-accused-capitol-rioters-outline-a-defense-the-president-made-them-do-it-014900543.html
[22] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[23] The Hill: https://thehill.com/homenews/senate/535925-senate-rejects-paul-effort-to-declare-trump-impeachment-trial
[24] ABC News: https://abcnews.go.com/Politics/impeachment-democrats-seek-bar-trump-post-presidency-financial/story?id=75178231
[25] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/constitution-conan/article-2/section-4/judgment-removal-and-disqualification
[26] Vox: https://www.vox.com/22220495/impeachment-trump-2024-election-bar-from-office
[27] ABA Journal: https://www.abajournal.com/news/article/could-the-14th-amendment-be-used-to-disqualify-trump-from-office
[28] ABC News: https://abcnews.go.com/Politics/democrats-cite-rarely-part-constitution-impeachment-article/story?id=75177543
[29] Constitution Annotated: https://constitution.congress.gov/browse/amendment-14/section-3/
[30] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment-explainer/impeachment-or-the-14th-amendment-can-trump-be-barred-from-future-office-idUSKBN29I356
[31] Ibid.
[32] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/
[33] Ibid.
[34] Ibid.
[35] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[36] Ibid.
[37] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[38] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/
[39] Ibid.



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