Legal scholars: Constitution clear that Trump’s impeachment for role in Capitol attack is appropriate

Legal scholars: Constitution clear that Trump’s impeachment for role in Capitol attack is appropriate

- in Law and the Courts, News, Top Story
Duke University associate professor of history Adriane Lentz-Smith (Photo: Duke University)

As the U.S. House impeached President Trump for the second time for “incitement of insurrection” Wednesday afternoon, many legal and political science scholars have decried his behavior and are demanding accountability to the Constitution. 

The Constitution lays the ground rules in Article 2, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 

Ted Shaw, civil rights and constitutional law professor at UNC-Chapel Hill said, “That ‘shall’ is a powerful word — it doesn’t suggest that there are conditions under which anyone who’s guilty of treason, bribery, other high crimes and misdemeanors should be left in office.”

President Trump spoke to his supporters before they laid siege to the Capitol last Wednesday. In his last few tweets before Twitter permanently suspended his account, Trump continued to make unsupported claims of election fraud. 

“Free speech is under assault like never before,” Trump said in a public speech near the Texas-Mexico border, his first appearance since the insurrection.

The Constitution shields sitting presidents from certain lawsuits, and they are entitled to First Amendment rights. However, Shaw said, Trump “violated his oath of office to uphold the Constitution by fomenting the belief that the election was fraudulent, tried to intimidate state election officials into changing election results in a way that ignored the popular vote, and then incited an attack on the Capitol in order to stop a constitutionally mandated process.”

Duke University political science professor Alexander Kirshner said if the Senate ultimately convicts Trump or to enact laws to prevent him from running for re-election, the process isn’t undemocratic. The president “quite clearly has taken actions that were intended to undermine the democratic process,” Kirshner said at a recent Duke media briefing on the insurrection.

Duke associate professor of history Adriane Lentz-Smith warned about “the culpability for the people who encouraged, incited or enabled an incredibly dysfunctional politics.”

Ted Shaw, UNC professor of constitutional law and civil rights (Photo: UNC )

Many legal scholars saw attorneys among those enablers. They felt it necessary to reiterate lawyers’ ethical obligation to make claims grounded in facts. More than 100 law school deans nationwide stressed the obligation of lawyers to support the rule of law, including several in North Carolina: Martin Brinkley at UNC-Chapel Hill, Kerry Abrams at Duke University, Luke Bierman at Elon University, and Jane Aiken at Wake Forest University, in a joint statement

“Some lawyers challenged the outcome of the election with claims that they did not support with facts or evidence,” they wrote in the statement. 

The statement called these acts a betrayal of the values of the profession, which demands that “when lawyers pursue legal action, they must bring claims in good faith, grounded in facts and evidence, and demonstrate respect for the legal system.”

The New York Bar Association is considering disbarring Trump’s personal lawyer, former New York City Mayor Rudy Giuliani, who told the mob rallying around the U.S. Capitol “let’s have trial by combat.” This is viewed as a symbolic move as only the Appellate Division of the Supreme Court of the State of New York has the authority to revoke his license. 

Sen. Ted Cruz, R-Texas., and Sen. Josh Hawley, R-Mo. both attorneys, challenged the electoral votes during certification and provoked outrage from the legal community urging their respective bar associations to remove them.

The New York Times reported that former North Carolina Supreme Court Chief Justice Mark Martin advised Trump that Vice President Mike Pence had the power to overturn electoral college results. That is not true.

Martin is now the dean of Regent University School of Law in Virginia Beach, Va. 

Chris Roslan, spokesperson at Regent University said Martin is not accepting interviews, and the school had not released a statement as of Wednesday.