Noah Feldman on Axios Today About the Impeachment Trial

will too. Lots of people have questions about the constitutionality of whether or not it's legal and if there's any historical precedent to try former President Donald Trump for impeachment since he's no longer in office. I thought I would pose this question to Axios Today's resident legal scholar, Harvard Law professor Noah Feldman. Hi, Noah, Hi, Niland. Nice to be promoted to being a resident at Axios. Feels good. Good.

There is a legal precedent, and for this we have to go back to Ulysses S. Grant Secretary of War William Bellknap. What did we learn from his case? Bellknapp, who had actually been a Civil War hero but was probably not so well suited to become Secretary of War, had through his wife, been getting unlawful profits from somebody he made an appointment for, and that was figured out

towards the end of the Grant administration. Minutes before he was about to be impeached, on the floor of the House, he ran, literally, you can't make the stef up to the White House to resign, in the hopes that he would avoid the embarrassment of being impeached. But they impeached him anyway. After he'd already resigned. The House impeached him,

and it went to a trial in the Senate. A bunch of senators claimed, not a majority, but a big number claimed, much like a bunch of Republicans have already claimed in the Senate, that you couldn't try him because

he was already out of office. A majority said, as indeed was also said with respect to Trump, that they could go far with the trial, and ultimately bell Napp was not convicted by the Senate, with a lot of the people voting not to convict him, saying that their reason was not that they thought he wasn't guilty, but that they thought it shouldn't be possible to do it. So what you take away from all this is that has someone been impeached late and then tried in the Senate? Yes?

Was that person convicted? No? Who is it up to? You guessed it? It's up to the Senate. The Senate gets to make up its own mind on this question. But who in the Senate? Like the essential question here is can a private citizen be impeached? Right? Like, that's what the constitutionality goes to. Well, that's the way the Trump people would phrase it. I think the House managers

will phrase it the other way. They'll say, can the President of the United States who has been impeached while he was still in office be tried by the Senate when he's out of office when there remains the possibility that after conviction he could be barred from running for office again, Namely, there is a live issue. So that's how the House manager would put it. And the answer is we're never going to know the definitive answer to this.

We're just going to have a lot of debate around it, and then we're going to get a vote on whether to convict Donald Trump or not to convict him. And it'll still take a two thirds vote to convict him, and if he's not convicted, some people will say, you see, it was unconstitutional. Other people say it was completely constitutional. But we didn't have two thirds of the Senate. So I love the story of Balnat because he hired the best lawyers money could find, and at the time those

lawyers argued it wasn't constitutional that he be impeached. Do you think that's the case that former President Trump's lawyers will also be making. We know for sure they'll make it because it's already been made in the court of public opinion, and because forty five senators already said they agreed with it, and that's enough people to block the president from being removed from office in this instance, not removed, but rather blocked from running again. So you know for

sure that that argument will be made. And as I said, the argument can be made. It's been made in the past. It hasn't necessarily prevailed in the past, but some senators agreed with it. My own view, if you ask me about the fundamental underlying constitutional question, which I admit you didn't, is that on the whole, there's no reason to think you can't go forward when he's out of office. The

Constitution doesn't say you can't. And what's more, of the founding generation was very familiar with impeachments that took place after people left office. In fact, that was their normal form of impeachment that they inherited from Great Britain, and they did it all the time. So I don't think there's any historical reason that it shouldn't be possible to

do it. And if you say, well, it's just symbolic, it's not just symbolic, because they're still at stake the possibility that Trump could be barred from running for office again. And if the framers had wanted to eliminate that possibility, they probably wouldn't have created a mechanism where the president could actually be blocked from running again, or anyone who is impeached could be blocked from running again. Why is it clear that the power to determine this arrest in

the Senate. Because the Constitution puts the power to impeach in the House of Representatives explicitly, and it puts the power to convict in the Senate explicitly. And under Supreme Court precedent, where the Institution assigns a specific role or

function to a branch of government. The courts will not step in and second guess that branch, because the courts see this as what's called a political question, a question specifically given to one of the political branches of government, in this case, to Congress, and so the Supreme Court will not step into rule on the constitutionality of this. It will be left to the Senate, and the Senate's word will be final. As a constitutional law scholar, what

are you watching for in the trial next week? What are you listening for in the arguments? I think there are three main defenses that are likely to be raised, and the first is the one we've already mentioned, the idea that even if Trump were guilty, it doesn't matter

because it's unconstitutional to put them on trial. That argument, as I said, I think is wrong, but it's a nice convenient excuse if you're a Republican center and you want to vote to acquit the president, the former president, and you don't want to go on the record as saying you think that the attack on the Capitol was fine, and so it's a very appealing argument, so unquestionably it

will be made. The second argument is an argument based on free speech, and the first Amendment, and this argument I think is wrong, but it's an argument that does have some value to it, and it goes like this.

It says, under criminal law, if you charge someone with incitement to violence, which is what the article of impeachment charges the president with, we have a controlling case called Brandenburg against Ohio that states the legal standard, and that legal standard says that to be convicted of incitement, your words have to be directed at inciting imminent lawless action and have to have been likely actually to do so.

Now the latter part is taken care of because the president's words were followed by a criminal act, a series of criminal acts in the Capitol. So the key is were the president's words directed to inciting violence? And someone could argue under the standard, if the president were criminally charged, that he didn't explicitly say that the cap should be breached. Nor is it possible to prove definitively beyond a reasonable doubt in an ordinary criminal court that he intended to

produce imminent lawless action. And if that's all true, it's a lot of ifs, But if that's all true, then you probably couldn't convict Donald Trump in a criminal court of incitement. You're talking about a criminal court, but this is the Senate, So how does this work. This is not like a criminal court because it's the Senate that is doing mose correct, And you're getting now to why I think this argument is wrong, But I'm still ventriloquizing

what Trump's lawyers would say. What they'll say is, well, a high crime or misdemeanor is supposed to be a crime under the law. No, that's wrong, and I so testified at the last impeachment round. But there are some tiny number of professors who have claimed such a thing.

So they'll claim that. They'll say, well, it has to have been a crime, and this wasn't a crime, or their fallback option, slightly less embarrassing would be to say, well, the First Amends and is in the constitution, so when we decide whether to remove someone from office or to punish them for incitement, we ought to be informed by that First Amendment standard as interpreted by the courts. Not that we're bound by it, but it'd be nice to think about it. And if that's the case, they'll say,

you shouldn't convict Donald Trump. That's a defense that, while again I think is wrong, is a defense that I can imagine being made with a straight face by a lawyer. It's not the kind of thing that would get you disbarred. And then, last, but not least, you should watch for whether they're actually willing to come out and say, as people did in defense of the president in the last impeachment trial, that what he said in his speeches and

what he did was fine. You know, remember that Donald Trump said that his call with the president of Ukraine was perfect. I imagine somebody will get up there and say that the speech that Donald Trump gave on January sixth was perfect, that there was nothing wrong with it. There's nothing wrong with telling people, you know, that they should you pursue resistance to the government of the United States, because after all, the election was, after all, really really stolen.

And you know, the lawyers may make an argument to that effect, and there may be some constituency in the country and in the Senate that is responsive to that kind of extreme he didn't do anything wrong argument. I wonder how that works illegally if you have house managers making the argument that he incited insurrection, and then you have Republicans and President Trump's attorney saying, well, he didn't incite insurrection because he won the election. It was stolen

from him. How does that even reconcile legally when it sounds like they're in two different planets. Well, that happens a lot in cases of legal dispute and legal argument. If you think about it this way, the Trump lawyers arguments are the classic defense lawyers arguments. One, this whole trial is unconstitutional. Two, even if he did the things you said, they were protected by the Constitution and the First Amendment. Three, he never did them. After all, he

never actually incited anybody. And for he's actually the president of the United States. I mean, they have to be a little careful about saying that because if he's the president of United States, he can be put on trial in the Senate. So they're gonna have to not overstate that case too strongly. But you know that's not uncommon. You know. The best thing for a defense attorney to do is suggest to the jury in this case, the Senate, that we are living in a completely different universe than

the universe occupied by the prosecution. That's garden variety of criminal defense, and it's something that you reasonably could expect Trumps lawyers to do too. How much of this, though, do you think, is about proving a case versus making a political case. It's ninety nine percent about making the political case. At this point. The question is whether Trump's lawyers think that the best way to make their political

case is also to make the legal case. My long term prediction is that after the Senate does not convict Trump, which seems like the most likely outcome by a big stretch, that Trump will then want to go to the public and say, you know what, I was indicted in the articles of impeachment and I was acquit it. So everyone can move along. There's now been an official finding of the United States Senate, the relevant body, that says I didn't do anything wrong. I have nothing to do with

what took place on January sixth. You know He's going to say that, and that will be his pivot point for the beginning of his process of rehabilitation. And so, in my mind, the strategic value of the trial from Trump's perspective is to make sure that he is not convicted, which shouldn't be too hard from his perspective, and then use that as the pivot. So the politics will come from the Senate vote that says he is not removed. You can find Noah Feldman on Deep Background, which is

a podcast he hosts. Thanks Noah, thanks for having me.