Why only one Article of Impeachment?

Although much of the case against Trump rests on more than just his incitement of the attack on the capitol, the House only brought over one Article of Impeachment all of which revolves around the incitement charge. In their case to the Senate, they show all of the other things Trump did leading up to that day and in its aftermath later in the day. His complete failure to mobilize any response to the attack is one of the most obvious cases of dereliction of duty by any President ever. My Constitutionalist colleague Jeff Tulis and his co-author Bill Kristol have argued in a piece a couple of weeks ago that the dereliction of duty charge is wrapped into the incitement charge. It proves incitement because he did nothing to respond to it. Although that argument makes complete sense, I suspect it’s too complicated. Better to have simply put on the table an article of impeachment which accuses him of failing to live up to his presidential responsibilities. He can’t hide behind “First Amendment” claims if he’s being charged with dereliction of duty. It seems to me that the question from Romney and Collins today point in this direction. What did he know about the threat to Mike Pence and what did he do about it? If a Second Article of Impeachment were on the table, the Senate would be forced to wrestle more explicitly with his shocking failures after the attack. Perhaps the impeachment managers thought they should only pursue explicit crimes like incitement. But then so much of what they’re saying throughout does not seem germane to the actual charge. They needed more explicitly to challenge the merely criminal framework by adding at least one Article that was not about crime but a failure to live up to his constitutional oath.

One thought on “Why only one Article of Impeachment?

  1. I think the results today show that your political analysis is wrong, but as a legal matter you have an arguable point. Politically, it became clear that the House Managers did persuade the factual case. The best evidence for that proposition is McConnell’s unusual speech that sounded like a closing for the House Managers and the rush of other Republicans to concede the factual case. I may write a post later today or tomorrow on how odd the rest of McConnell’s speech was regarding the jurisdictional question. But the one and only arguable point that was made in the closing by Trump’s lawyer was that the Senate impeachment rules require that separable offenses have individual Articles. He smartly pointed out that the logic behind this rule was to insure a genuine 2/3 majority for charged offenses. If not separated one could assemble a false super majority by combining offenses because each individually could not gain the requisite votes. That was a plausible defense for the President — the only one, in my view, during the Trial. Plausible does not mean there is no adequate response. The House Managers argue that Incitement to insurrection is a series of gross abuses of office, as Kristol and I urged. It clearly was not too complicated for the Senators, or the public, to understand.

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