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Is It Unconstitutional To Put A Former President On Trial?


Now let's analyze these legal arguments with Daniel Goldman. He was the lead counsel for House Democrats in the first Trump impeachment trial, and he's a former assistant U.S. attorney for the Southern District of New York. Dan, good morning.

DANIEL GOLDMAN: Good morning.

PFEIFFER: This main argument in former President Trump's defense brief is - is it unconstitutional to put a former president on trial? What do you say to that?

GOLDMAN: It's clearly constitutional. The Constitution - the structure and text of the Constitution requires the vote on conviction before you get to a vote on disqualification. So the idea is that even in the ordinary course, whoever is on trial would be removed from office before the Senate were to vote on disqualification. In addition, you have a situation here where the former president was impeached by the House before he was removed from office. If you analogize that to a criminal case, it's effectively an indictment before the statute of limitations, and that's all that's required.

So even if the trial happens afterwards, the original charges happened while he was in office. So both in terms of practicality and common sense, as well as the text of the Constitution, it's a a losing argument. But it is something that the Trump defense team and some of the Republican senators can latch onto so that they don't actually have to address the conduct at issue.

PFEIFFER: There's also a First Amendment defense argument. President Trump's lawyers argue that Trump's speech is covered under the First Amendment and that his statements were figurative. Here is Trump at that rally on January 6.


DONALD TRUMP: And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.

PFEIFFER: Dan Goldman, in your view, was Trump's speech that day protected by his First Amendment rights?

GOLDMAN: No. And it's not just my view; it's the view of 145 First Amendment scholars across the country who issued a letter about that. First of all, there's no real First Amendment defense to impeachment. It is not that Trump is being charged with criminally, that he could go to jail. But second of all, even if it were, there's all sorts of speech that is criminalized. You can't - you know, you can't use hate speech. You - people - in all sorts of crimes. You can't send death threats across, you know, the Internet. There are so many criminal laws that do criminalize speech, and so the notion that the president of the United States somehow has a First Amendment right to be protected by the government for his speech doesn't make any sense. It's a backwards argument, and it's a loser.

PFEIFFER: There are many Republicans, as we've said, objecting to the process of this. They're saying it's unconstitutional to even have this trial. But yet the Democrats are also arguing that Trump committed high crimes and misdemeanors. Those are the merits of the case. What are impeachment managers doing to try to convince Senate Republicans about the merits of the case and that they should vote to impeach and convict based on them?

GOLDMAN: So the article of impeachment charge is incitement of insurrection, based largely on the January 6 riot. But I think what we're going to see over the next couple of days is a much larger scope, going back even before the election, when Trump planted the seed that the election was going to be rigged, and then in the two months after the election, leading up to January 6, all of the different times that he falsely claimed that the election was fraudulent, that it was rigged and all of his efforts to overthrow the lawful election.

Then what you can see is his planning of an involvement in the planning of the January 6 riot. Then you, of course, see not only his statements on January 6, but a lot of his followers' social media statements, talking about how they were marching on the Capitol at Trump's direction and at his wishes and that they were, essentially, following their leader. But perhaps the most crucial piece of evidence to demonstrate Donald Trump's state of mind and what he intended with his words is going to be his inaction that occurred after the riots started. And there are reports that - well, first of all, we know he did nothing. But there are also reports that he sat there watching television kind of gleeful. So you'll see a broader view of everything to put January 6 into context.

PFEIFFER: And by the way, Dan, I've read in previous interviews that you've given a mafia analogy in terms of whether the speech was figurative. Could you share that here?

GOLDMAN: Sure. In - the mafia bosses who I prosecuted don't tell their underlings, go kill this person. They say, go ahead and take care of him. And that's very similar to Donald Trump's language that Michael Cohen explained in his congressional testimony - how Trump does not directly say, please go march on the Capitol and interfere with Congress' certification of the electoral votes. But his language is intended to and is understood by his followers to mean the same thing.

PFEIFFER: That's Daniel Goldman. He was the lead attorney during Trump's first impeachment trial. Thank you for your perspective.

GOLDMAN: Thanks very much.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.