Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is regular contributor for The Constitutionalist.
The most dangerous and lingering precedent in the Trump trial may be the one both sides indulged: a legalistic conception of impeachment that placed the impeached official, not the public good, at the center. The defense, and to some extent the prosecution, humored the national obsession with the former president’s personality by making the trial all about Donald Trump.
The real issue was not a technical, statutory assessment of Trump’s conduct. His lawyers tried to do that by invoking his rights, and the prosecution played into it by insisting that Trump’s conduct met the criminal definition of incitement. The decisive question, essentially political in character, was whether he abused a trust that was placed temporarily in his hands for the sake of the public good.
In that sense, the defense’s mangling of concepts like free speech and due process was more than a tangle of bad facts and bad law. It was also bad political thought. The emphasis on his rights misconceived the nature of political authority. Rights protect individuals against the abuse of power. Political authority is about exercising power over others. In asserting a personal entitlement to hold political office, Trump claimed a right to coerce other people. Yet he only possessed coercive authority because the people temporarily entrusted it to him.
In the clause authorizing Congress to disqualify impeached and convicted presidents from public office, the Constitution refers to political authority as a “trust.” That is a legal term, not a rhetorical one. William Blackstone, on whose writings the American founders relied, explained that property held in trust, as opposed to personal property, was to be used for the benefit of another. By calling political office a “public” trust, the Constitution makes clear for whose benefit it is to be used: It is held in the name, and for the benefit, of the people. There is no personal right to it.
Blackstone’s American counterpart, Joseph Story, similarly explained that a president should “consider himself as executing a public trust.” By invoking his personal rights, Trump’s defense deformed that idea by confusing political authority with personal property. A public trust is no different from a private trust under civil law. The holder of a private trust is appointed to use property for the good of beneficiaries. He or she does not possess a personal right to do so.
Nor can there be a right to be president, which ultimately was the right being claimed under the cloak of due process and free speech. The implication was that Trump would suffer a personal loss—a deprivation of liberty—if he were not allowed to serve as president again. But exercising political power is not a right, which is why the Constitution imposes all kinds of constraints on who can be president.
The political thought undergirding the defense was even more insidious than its misreading of the Constitution. The implications of entitling people to hold power—not over themselves, but rather over others—would be politically immense. Even the concept would alter the behavior of political officials, who would be encouraged to see their offices as personal fiefdoms rather than as public trusts. Could they be blamed for exercising them for personal benefit?
That concept appeared lost in the assertion of Trump’s rights, especially to due process. There is no specific guarantee the Constitution provides an impeached officer other than a Senate trial. The “process” they claimed was denied was never “due” in the first place. More importantly, though, it was not a “right.” It is the beneficiaries, not the executors, of a trust whose rights are in question. A fair and deliberate process was important because it served their interests, not Trump’s.
Similarly, Trump’s attorneys invoked his right to free speech. There was something especially facile about hiding a charge of incitement behind the First Amendment, a move no serious constitutional scholar—or, indeed, any casual reader of the Constitution—would buy. Moreover, there was no question of prior restraint. The question here was accountability—again, politically, not criminally or even civilly—for what was spoken, not restraining speech in the first place.
More important, though, Trump’s rights were not the issue. The defense argued that, under decisions of the Supreme Court, public officials enjoy the highest protection for free speech. That is correct, but the reason for it undermines Trump’s case. The Constitution protects the right of public officials to discuss ideas openly not as a personal entitlement but rather because robust debate promotes the public good.
The precedent the Trump defense cited—the 1966 case of Bond v. Floyd—makes that explicit in the same passage their brief quoted: “Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them.” The key phrase is “so that.” Public officials possess free speech rights for a reason: to facilitate their exercise of a public trust. Only Trump’s fitness to exercise that trust was in question, not a free-range entitlement to hold it.
Americans have a proclivity to understand politics through the eyes of politicians. We obsess over their personalities. We analyze their wins and losses as though they were gladiators fighting for personal glory. That distorts the purpose of political power. It makes coercive power a personal entitlement of the politician rather than a trust held for others.
It is consequently fitting that Republicans like Senator Lindsey Graham of South Carolina still cannot quit their own obsession with, or fear of, Trump’s personality. Graham, too, asserted Trump’s personal rights, absurdly claiming the former president was impeached “without a lawyer.” A lawyer is the one thing Trump has never been without. But neither is Trump’s personal situation the issue. What were asserted as his rights were relevant only to the extent they served the public good.
There is a symmetry to Trump having been acquitted on the same basis on which he rose to power: a fixation on him personally. There were ample arguments available to the defense that would have focused on the public trust he held. A simple argument that acquittal served the public good would have sufficed. But Trump’s advocates were more interested in the grievances of one man than in the beneficiaries of the trust he violated. Many still are.