U.S.
Sen. Chuck Grassley (R-Iowa) today detailed the constitutional, precedential,
factual and legal analyses supporting his vote to find former President Donald
Trump not guilty of the House of Representatives’ article of impeachment.
In his
statement for the Senate record, Grassley reiterated that the January 6 attack
on the U.S. Capitol was an assault on democracy itself, and that former President
Trump had displayed poor leadership, but stated that the impeachment managers
for the House of Representatives failed to prove their case.
“We do
not have the authority to try a private citizen like former President Trump.
Even if we did, he should have been accorded the protections of due process of
law in his trial. And even if we assume he has been, the House Managers still
did not prove that he committed incitement to insurrection, the specific crime
of which he stands accused. This does not excuse President Trump’s conduct on
and around January 6th of this year,” Grassley
said in the statement for the Senate record.
Grassley’s
full statement for the Senate record follows:
Statement
for the Senate Record by Senator Chuck Grassley of Iowa
United
States Senate
On the
Senate’s Acquittal of former President Donald Trump
February
13, 2021
Just
barely a year ago I was here making a similar statement. Impeachment is one of
the most solemn matters to come before the Senate, but I worry that it’s also
becoming a common occurrence.
Before
getting into the merits of this impeachment, it is important to reiterate that January
6 was a sad and tragic day for America. I hope we can all agree about that.
What
happened here at the Capitol was completely inexcusable. It was not a
demonstration of any of our protected, inalienable rights. It was a direct,
violent attack on our seat of government. Those who plowed over police
barricades, assaulted law enforcement, and desecrated our monument to
representative democracy flouted the rule of law and disgraced our nation. Six
people, including two U.S. Capitol Police Officers, now lie dead in the wake of
this assault. The perpetrators must be brought to justice, and I am glad to see
that many such cases are progressing around the country.
While
the ultimate responsibility for this attack rests upon the shoulders of those
who unlawfully entered the Capitol, everyone involved must take responsibility
for their destructive actions that day, including the former president. As the
leader of the nation, all presidents bear some responsibility for the actions
that they inspire — good or bad. Undoubtedly, then-President Trump displayed
poor leadership in his words and actions. I do not defend those actions and my vote
should not be read as a defense of those actions.
I am a
member of a court of impeachment. My job is to vote on the case brought by the
House Managers. I took an oath to render judgment on the article of impeachment
sent to the Senate by the House of Representatives. We are confined to considering
only the articles charged and the facts presented.
First
and foremost, I don’t think this impeachment is proper under the Constitution.
This is the first time the Senate has tried a former president. Whether or not it can do so is a difficult
question. The Constitution doesn’t say in black and white “yes, the Senate can try
a former president” or “no, it can’t.” In contrast, many state constitutions at
the time of the Founding specified that their legislatures could, so it’s
notable that our federal charter did not. In order to answer this question it’s
therefore necessary to look at the text, structure, and history of the
Constitution. That’s what I have done. In the end I do not think we have the
ability to try a former president.
I start
always with the Constitution, which gives Congress the power of impeachment. As
I mentioned, impeachment was a feature in many state constitutions at the time
and it came from a power enjoyed by the English Parliament.
Impeachment
in England was a powerful tool whereby Parliament could hold individuals
accountable for actions against the government without having to rely on the
King to enforce it. It applied not just to sitting government officials, but
also to former government officials, and even to private individuals. It was
not simply a way to remove government officials but a general method of
punishing the enemies of Parliament, including with fines, jail time, or even
death.
This
is not the system established by our Constitution. Our Constitution restricts the power of impeachment in
two important ways. First, it says that Congress can’t just impeach anyone:
only the president, the vice president, and “all civil Officers of the United
States” can be impeached. It then restricts the penalties for impeachment to
removal from office and disqualification.
A
former President is not in any of those three categories. He is not the
president. In fact the Constitution also specifies that when the president is
impeached, the Chief Justice of the Supreme Court shall preside over the trial. Chief Justice Roberts has not
presided over this trial, thus making it clear that it is not the trial of a
president. He is obviously not the vice
president. He is not a civil officer of the United States.
Because
he does not fall into any of these categories, I don’t think that this trial
was appropriate.
Moving
beyond the text of the Constitution, the history of the Senate confirms this.
The United States Senate has never convicted
a former official in an impeachment. The Senate has tried three individuals who
were former officers—William Blount (a former Senator in 1798), William Belknap
(a former Secretary of War in 1876), and Robert Archibald (an incumbent
Commerce Court judge in 1912 tried as well for conduct while a District Judge).
Belknap is the only executive branch member tried after leaving office. None
was convicted for his prior conduct—Archibald was convicted on counts relating
to his incumbent judicial service on the Commerce Court. In all three cases the
jurisdictional question loomed large at the trial and was cited as an important
argument justifying the acquittals. In other words, Senate practice is
consistent: it has never convicted a former official in an impeachment.
Between
the text of the Constitution and the consistent practice of the Senate, I’m
convinced that this is not an appropriate use of our power. While I realize
there are arguments on the other side from learned scholars, to me they do not
overcome these problems of text and history.
That’s
why I voted twice to deal with this impeachment on jurisdictional grounds. But
my position didn’t prevail, with the majority Democrats voting in lockstep to
proceed, and we went to trial. As I’ve said, even though I think this is
inappropriate, I kept an open mind during the process and I listened to both
sides as they presented their evidence.
The
House Managers tried to prove that President Trump incited an insurrection.
That is a difficult argument to make. There were many other articles over which
they could have impeached President Trump but this is what the House of
Representatives chose. They didn’t meet their burden.
Before
getting to the merits of the charge, I need to point out that this impeachment
trial has not aligned with principles of due process of law. Other impeachments
have involved significant fact-finding in the House, where proper legal
formalities are followed, witnesses are heard from and cross-examined, and hard
evidence is reviewed. Here there were no hearings in the House. The evidence
presented was mostly video montages and news reports. We even had the unusual
spectacle of voting to call witnesses for the first time as the trial was
ending only to immediately reverse course and call none. Given the seriousness
of the situation, I think we should expect better when the House exercises its
constitutional duty of impeachment.
This
issue involves complicated legal questions. In our legal system, though, it is
very difficult for speech to rise to the level of incitement. Incitement is a
legal term of art. Usually it takes place in the context of incitement to
violence. Incitement, in our legal system, doesn’t mean “encouraging” violence
or “advocating” violence or even “espousing” violence. It means intentionally causing likely violence.
Because the article of impeachment uses the word “incitement,” I need to
evaluate President Trump’s actions under the rubrics of the law of incitement,
which were set out in the Supreme Court case of Brandenburg v. Ohio. In that case the Court held that incitement
required speech that, first, encourages “imminent lawless action” and, second, “is likely to incite or
produce such action.” In other words, in order to succeed the House Managers
must have shown that President Trump’s speech was intended to direct the crowd
to assault the Capitol and that his language was also likely to have that
effect.
As I
said before, what happened on January 6 was tragic. We can’t let it happen
again. But the House Managers have not sufficiently demonstrated that President
Trump’s speech incited it. While I will have more to say about President
Trump’s conduct, the fact is that he said this: “I know that everyone here will
soon be marching over to the Capitol
building to peacefully and
patriotically make your voices heard.”
That speech is not an incitement to imminent lawless action as established in
the case law. I wish the crowd would have listened to him.
Just
because President Trump did not meet the definition of inciting insurrection
does not mean that I think he behaved well.
To be
clear, I wanted President Trump to win in November. I gave over thirty speeches
on his behalf in Iowa the week before the election. He—like any politician—is
entitled to seek redress in the courts to resolve election disputes. President
Trump did just that and there’s nothing wrong with it. I supported the exercise
of this right in the hopes that allowing the election challenge process to play
out would remove all doubt about the outcome. The reality is, he lost. He
brought over 60 lawsuits and lost all but one of them. He was not able to
challenge enough votes to overcome President Biden’s significant margins in key
states. I wish it would have stopped there.
It
didn’t. President Trump continued to argue that the election had been stolen
even though the courts didn’t back up his claims. He belittled and harassed
elected officials across the country to get his way. He encouraged his own, loyal
vice president, Mike Pence, to take extraordinary and unconstitutional actions
during the Electoral College count. My vote in this impeachment does nothing to
excuse or justify those actions. There’s no doubt in my mind that President
Trump’s language was extreme, aggressive, and irresponsible.
Unfortunately,
others share the blame in polluting our political discourse with inflammatory
and divisive language. As President Trump’s attorneys showed, whatever we heard
from President Trump, we had been hearing from Democrats for years. National
Democrats—up to and including President Biden and Vice President Harris—have
become regular purveyors of speech dismissing and even condoning violence. It’s
not surprising that when they talk about taking the “fight” to “the streets” organizations
like Antifa actually take to the streets of our cities with shields and bats
and fists, destroying lives and livelihoods.
Yes, I
think President Trump should have accepted President Biden’s victory when it
became clear he won. I think Secretary Clinton should have done the same thing
in 2016. But as recently as 2019, she questioned the legitimacy of Trump’s
election, saying “[Trump] knows he’s an illegitimate president. I believe he
understands that the many varying tactics they used, from voter suppression and
voter purging to hacking to the false stories … there were just a bunch of
different reasons why the election turned out like it did.”
If
there’s one lesson I hope we all learn from not only last year, but the last
few years, it’s that we all need to tone down the rhetoric. Whether it’s the destructive
riots we saw last summer or the assault on the Capitol, too many people think
that politics really is just war by another name. To far too many people, our
democracy isn’t free people coming together to make life better for our
communities. It’s a street fight.
We
don’t need to agree on everything. In fact, part of what makes our democracy
great is that we don’t agree on everything. But we do need to resolve these
differences with debate and with elections, not with violence. Whether the
violence comes from the left or the right, it’s wrong. The same goes for speech
that claims to define enemies by political views or affiliations.
We’re
all Americans, always trying to form a more perfect union. We have more in
common than what divides us. It’s high time those of us who have been elected
to serve lead by example. We can take the high road. We can tone down the
rhetoric. We can be respectful even when we disagree strongly. If we don’t,
we’ll be betraying the trust that the American people have placed in us and
we’ll endanger the democracy and the freedom that so many of us have worked to
preserve.
These
are difficult issues I have considered over the past week. But in the end I am
confident in what I think is the correct position. We do not have the authority
to try a private citizen like former President Trump. Even if we did, he should
have been accorded the protections of due process of law in his trial. And even
if we assume he has been, the House Managers still did not prove that he
committed incitement to insurrection, the specific crime of which he stands
accused. This does not excuse President Trump’s conduct on and around January
6th of this year. It satisfies my oath as a U.S. Senator in this court of
impeachment. I therefore voted to acquit.
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