Feb 9, 2021
Rep. Joe Neguse Opening Statement Transcript: Trump’s Second Impeachment Trial
Impeachment manager Rep. Joe Neguse gave an opening statement defending the constitutionality of Trump’s second impeachment trial on February 9, 2021. Read the full transcript of his remarks here.
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Joe Neguse: (00:00)
Mr president, distinguished senators, my name is Joe Neguse and I represent Colorado’s 2nd Congressional District in the United States Congress. Like many of you, I’m an attorney. I practiced law before I came to Congress, tried a lot of different cases, some more unique than others. Certainly never a case as important as this one, nor a case with such a heavy and weighty constitutional question for you all to decide.
Joe Neguse: (00:30)
Thankfully, as lead manager, Raskin so thoroughly explained, the framers have answered that question for you, for us. And you don’t need to be a constitutional scholar to know that the argument President Trump asks you to adopt is not just wrong. It’s dangerous. And you don’t have to take my word for it. This body, the world’s greatest deliberative body, the United States Senate, has reached that same conclusion in one form or another over the past 200 years in multiple occasions that we’ll go through. Over 150 constitutional scholars, experts, judges, conservative, liberal, you name it, they overwhelmingly have reached the same conclusion that of course you can try, convict, and disqualify a former president. And that makes sense because the text of the constitution makes clear there is no January exception to the impeachment power. That presidents can’t commit grave offenses in their final days and escape any congressional response. That’s not how our constitution works.
Joe Neguse: (02:00)
Let’s start with the precedent with what has happened in this very chamber. I’d like to focus on just two cases. I’ll go through them quickly. One of them is the nation’s very first impeachment case which actually was of a former official. In 1797, about a decade after our country had ratified our constitution, there was a senator from Tennessee by the name of William Blount who was caught conspiring with the British to try to sell Florida and Louisiana. Ultimately, president Adams caught him. He turned over the evidence to Congress. Four days later, the House of Representatives impeached him. A day after that, this body, the United States Senate, expelled him from office. So he was very much a former official. Despite that, the House went forward with its impeachment proceeding in order to disqualify him from ever again holding federal office. And so the Senate proceeded with the trial with none other than Thomas Jefferson presiding.
Joe Neguse: (03:14)
Now, Blount argued that the Senate couldn’t proceed because he had already been expelled. But here’s the interesting thing. He expressly disavowed any claim that former officials can’t ever be impeached. Unlike President Trump, he was very clear that he respected and understood that he could not even try to argue that ridiculous position. Even impeached Senator Blount recognized the inherent absurdity of that view. Here’s what he said. “I certainly never shall contend that an officer may first commit an offense and afterwards avoid by resigning his office.” That’s the point. And there was no doubt because the founders were around to confirm that that was their intent and the obvious meaning of what is in the constitution.
Joe Neguse: (04:08)
Fast forward 80 years later, arguably the most important precedent that this body has to consider, the trial of former secretary of war, William Belknap. I’m not going to go into all the details, but just in short, in 1876, the House discovered that he was involved in a massive kickback scheme. Hours before the House committee that discovered this conduct released its report documenting the scheme, Belknap literally rushed to the White House to resign, tender his resignation to President Ulysses Grant to avoid any further inquiry into his misconduct and of course, to avoid being disqualified from holding federal office in the future. Well, later that day, aware of the resignation, what did the House do? The House moved forward and unanimously impeached him making clear its power to impeach a former official. And when his case reached the Senate, this body, Belknap made the exact same argument that President Trump is making today. That you all lack jurisdiction, any power to try him because he’s a former official.
Joe Neguse: (05:24)
Now, many senators at that time when they heard that argument, literally they were sitting in the same chairs you all are sitting in today. They were outraged by that argument. Outraged. You can read their comments in the record. They knew it was a dangerous, dangerous argument with dangerous implications. It would literally mean that a president could betray their country, leave office, and avoid impeachment and disqualification entirely. And that’s why in the end, the United States Senate decisively voted that the constitution required them to proceed with the trial. The Belknap case is clear precedent that the Senate must proceed with this trial since it rejected pre-trial dismissal, affirmed its jurisdiction, and moved to a full consideration of the merits.
Joe Neguse: (06:23)
Now, Belknap ultimately was not convicted, but only after a thorough public inquiry into his misconduct, which created a record of his wrongdoing. It ensured his accountability and deterred anyone else from considering such corruption by making clear that it was intolerable. The trial served important constitutional purposes. Now, given that precedent that I’ve described to you, given all that that precedent imparts, you could imagine my surprise, lead manager, Raskin surprise when we were reviewing the trial brief filed by the president in which his counsel insists that the Senate actually didn’t decide anything in the Belknap case. They say, these are not my words. I’ll quote from their trial brief, it can not be read as foreclosing an argument that they never dealt with.
Joe Neguse: (07:18)
Never dealt with? The Senate didn’t debate this question for two hours. The Senate debated this very question for two weeks. The Senate spent an additional two weeks deliberating on the jurisdictional question. And at the end of those deliberations, they decided decisively that the Senate has jurisdiction and that it could proceed, that it must proceed to a full trial. And by the way, unlike Belknap, as we know, President Trump was not impeached for run of the mill corruption, misconduct. He was impeached for inciting a violent insurrection. An insurrection where people died in this building. An insurrection that desecrated our seat of government. And if Congress were just to stand completely aside in the face of such an extraordinary crime against the republic, it would invite future presidents to use their power without any fear of accountability. And none of us, I know this, none of this, no matter our party or our politics wants that.
Joe Neguse: (08:39)
Now, we’ve gone through the highlights of the precedent and I think it’s important that you know, as lead manager, Raskin mentioned, that scholars overwhelmingly who have reviewed this same precedent have all come to the same conclusion, that the Senate must hear this case. Let’s go through just a few short examples. To start, all of us I know are familiar with the Federalist Society. Some of you may know Steven Calabresi personally. He’s the co-founder of the Federalist Society. Actually he was the chairman of the board in 2019. He was the first president of the Yale Federalist Society Chapter Board, a position that I understand Senator Hawley later held. Here is what Mr. Calabresi has to say. On January 21st, he issued a public letter, a public letter, excuse me, stating, “Our carefully considered views of the law lead all of us to agree that the constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.” And by the way, he’s not the only one as lead manager, Raskin said. President Reagan’s former solicitor general among many others.
Joe Neguse: (09:50)
Another prominent conservative scholar known to many of you, again, personally, is former Tenth Circuit Court of Appeals judge, my circuit, Judge Michael McConnell. He was nominated by President George W. Bush. He was confirmed by this body unanimously. Senator Hatch, many of you served with, he had this to say about Judge McConnell. That he’s an honest man. He calls it as he sees it. And he’s beholden to no one and no group. Well, what does Judge McConnell have to say about the question that you’re debating this afternoon? He said the following, “Given the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.” You heard lead manager, Raskin mention another lawyer, Chuck Cooper. He’s a prominent conservative lawyer here in Washington. He has represented former Attorney General, Jeff Sessions, House Minority Leader, Kevin McCarthy. He issued an editorial just two days ago, very powerful, observing that scholarship in this question has matured substantially. And that ultimately, the arguments that President Trump is championing are beset by serious weaknesses.
Joe Neguse: (11:03)
Finally, we’ve gone through a lot of scholars. I’ll finish on this one. There’s another scholar that I know some of you know and some of you have actually spoken with recently. Up until just a few weeks ago, he was a recognized champion, champion of the view that the constitution authorizes the impeachment of former officials. And that is professor Jonathan Turley. Let me show you what I mean. These are his words. First, in a very detailed study, thorough study, he explained that, “The resignation from office does not prevent trial on articles of impeachment.” That’s professor Turley’s words. Same piece. He celebrated the Belknap trial. He described it as a corrective measure that helped the system regain legitimacy. He wrote another article. He’s written several on this topic. This one is actually 146 page study, very detailed. And in that study, he said that, “The decision in Belknap was correct in its view that impeachment historically had extended to former officials, such as Warren Hastings,” who you heard lead manager, Raskin describe.
Joe Neguse: (12:15)
In fact, as you can see, professor Turley argued that the House could have impeached and the Senate could have tried Richard Nixon after he resigned. His quote on this, very telling. “Future presidents could not assume that mere resignation would avoid a trial of their conduct in the United States Senate.” Finally, last quote from professor Turley, that no man in no circumstance can escape the account which he owes to the laws of his country. Not my words, not lead manager, Raskin’s words, professor Jonathan Turley’s words. I agree with him because he’s exactly right.
Joe Neguse: (13:03)
Now, a question one might reasonably ask after going through all those quotes from such noted jurists and scholars is why is there such agreement on this topic? Well, the reason is pretty simple. Because it’s what the constitution says. I want to walk you through three provisions of the constitution that make clear that the Senate must try this case.
Joe Neguse: (13:30)
First, let’s start with what the constitution says about Congress’s power in Article I. You heard lead manager, Raskin make this point that it’s worth underscoring. Article I, Section 2 gives the House sole power of impeachment. Article I, Section 3 gives the Senate the sole power to try all impeachments. Now, based on President Trump’s argument, one would think that language includes caveats, exceptions, but it doesn’t. It doesn’t say impeachment of current civil officers. It doesn’t say impeachment of those still in office. The framers didn’t mince words. They provided express, absolute, unqualified grants of jurisdictional power to the House to impeach and to the Senate to try all impeachments. Not some, all.
Joe Neguse: (14:31)
Former judge McConnell, the judge that we talked about earlier, he provides very effective textual analysis of this provision. You can see it up here on the slide. And I’ll just give you the highlight. He says, and I’ll quote. This is judge McConnell. “Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.” Now again, here is what it’s pretty interesting to me at least. When we presented this argument in our trial brief, which we filed over a week ago, we laid it out, again, step-by-step so that you could consider it and so that opposing counsel could consider it as well. We received the President Trump’s response yesterday and the trial brief offers no rebuttal to this point. None. And in fairness, I can’t think of any convincing response. I mean that the constitution is just exceptionally clear on this point. Now, perhaps they will have something to say today about it, but they did not yesterday.
Joe Neguse: (15:40)
There’s another provision worth mentioning here because there’s been a lot of confusion about it. And I’m going to try to clear this up. It’s the provision on removal and disqualification. Now, we all know that Senate imposes a judgment only when it convicts. Up on the screen, you’ll see Article I, Section 3, Clause 7. So with that in mind, the language says that the Senate convicts the judgment shall not extend further than removal and disqualification. That’s it. The meaning is clear. The Senate has the power to impose removal, which only applies to current officials, and separately, it has the power to impose disqualification, which obviously applies to both current and former officers, but it doesn’t have the power to go any further than that.
Joe Neguse: (16:29)
Now, as I understand President Trump’s argument, they believe that this language somehow says that disqualification can only follow removal of a current officer, but it doesn’t. That interpretation essentially rewrites the constitution. It adds words that aren’t there. After all, the constitution does not say removal from office and then disqualification, it doesn’t say removal from office followed by disqualification, it simply says the Senate can’t do more than two possible sentences, removal and disqualification. And this by the way is not the first time that this direct question has been debated in this chamber. 146 years ago during the Belknap trial, Senator George Edmunds of Vermont. He’s one of the most prestigious Republican senators of his time. He sat right where Senator Grassley sits today. He zeroed in on this exact point during the Belknap trial. This is his quote, “A prohibition against doing more than two things cannot be turned into a command to do both or neither.”
Joe Neguse: (17:50)
And just imagine the consequences of such an absurd interpretation of the constitution. If President Trump were right about that language, then officials could commit the most extraordinary destructive offenses against the American people, high crimes and misdemeanors. They’d have total control over whether they can ever be impeached, and if they are, whether the Senate can try the case. If they want to escape any public inquiry into their misconduct or the risk of disqualification from future office, then it’s pretty simple. They could just resign one minute before the House impeaches or even one minute before the Senate trial, or they could resign during the Senate trial if it’s not looking so well. That would effectively erase disqualification from the constitution. It would put wrongdoers in charge of whether the Senate can try them.
Joe Neguse: (18:45)
Third and final reason why President Trump must stand trial, provision of Article I of the Constitution. You’ll see here on the screen that the constitution twice describes the accused in an impeachment trial. Here’s what I want you to focus on. The interesting thing is notice the words. It refers to a person and a party being impeached. Now, again, we know that the framers gave a lot of thought to the words that they chose. They even had a style committee during the Constitutional Convention. They could have written civil officers here. They did that elsewhere in the constitution. That would have ultimately limited impeachment trials to current officials. But instead, they used broader language to describe who could be tried by the United States Senate.
Joe Neguse: (19:39)
So who could be put on trial rather for impeachment other than civil officers? Who else could a person or a party be? Well, really there’s only one possible answer, former officers. And again, that actually might explain why during the Belknap trial, Senator Thomas Bayard of Delaware, he later became the Secretary of State of the United States, he sat right where Senator Carper is sitting now, he found this point so compelling that he felt compelled to speak out on it. And during the trial, he concluded that the constitution must allow the impeachment and trial of people and parties who are not civil officers. And the only group that could possibly encompass was former officials like Belknap. And of course here, like President Trump.
Joe Neguse: (20:27)
And just so we’re clear, and full disclosure, this is another argument that was not addressed by President Trump in his rebuttal. And we know why they didn’t. Because their argument doesn’t square with the plain text of the constitution. There is one provision that President Trump relies on almost exclusively, Article 11, Section 4. I’m sure you’ll see it when they present their arguments. Their argument is that the language you’ll see in the screen somehow prevents you from holding this trial by making removal from office an absolute requirement. But again, where does the language say that? Where does it say anything in that provision about your jurisdiction?
Joe Neguse: (21:21)
In fact, this provision isn’t even in the part of the constitution that addresses your authority. It’s in Article II not Article I. And it certainly says nothing about former officials. President Trump’s interpretation doesn’t square with history, originalism, textualism. In fact, even Chuck Cooper, the famous conservative lawyer I mentioned earlier with clients like the House Minority Leader, he has concluded that this provision of the constitution that President Trump relies on cuts against his position, his words. And that’s because as Cooper says, Article II, Section 4 means just what it says. The first half describes what an official must do to be impeached, namely commit high crimes and misdemeanors, and the second half describes what happens when civil officers of the United States, including the sitting president, are convicted, removal from office. That’s it. In Cooper’s words, it simply establishes what is known in criminal law as a mandatory minimum punishment. It says nothing about former officials. Nothing at all.
Joe Neguse: (22:47)
Given all of that, it is not surprising that in President Trump’s legal trial brief, 75 page brief, they struggled to find any professors to support their position. They did cite one professor though, professor Kalt. He’s an expert in this field, who they claimed agreed with them that the only purpose of impeachment is removal professor. Professor Kalt’s position, which they had to have known because it’s in the article that they cite in the brief, is that removal is “not the sole end of impeachment.” Actually, in that same article, he describes the view advocated by President Trump’s lawyers as having deep flaws.
Joe Neguse: (23:43)
And again, you do not have to take my word for it. You can take professor Kalt’s word for it, the professor they cited in their brief filed yesterday, because he tweeted about it. And on the screen here, this is what he had to say. I’m not going to read through it in great detail. I’ll just simply give you the highlights. President Trump’s brief cites my 2001 article on late impeachment a lot. But in several places, they misrepresent what I wrote quite badly. There are multiple examples of such flat-out misrepresentations. They didn’t have to be disingenuous and misleading like this. This key constitutional scholar relied on by President Trump said it just right.
Joe Neguse: (24:31)
I have explained in great detail the many reasons why the argument that President Trump advocates for here today is wrong. I just want to close with a note about why it’s dangerous. lead manager, Raskin explained that impeachment exists to protect the American people from officials who abuse their power, who betray them. It exists for a case just like this one. Honestly, it is hard to imagine a clearer example of how a president could abuse his office, inciting violence against a co-equal branch of government while seeking to remain in power after losing an election, sitting back and watching it unfold. We all know the consequences.
Joe Neguse: (25:35)
Like every one of you, I was in the Capitol on January 6th. I was on the floor with lead manager, Raskin. Like every one of you, I was evacuated as this violent mob stormed the Capitol’s gates. What you experienced that day, what we experienced that day, what our country experienced that day is the framers’ worst nightmare come to life. Presidents can’t inflame insurrection in their final weeks and then walk away like nothing happened. And yet that is the rule that President Trump asks you to adopt. I urge you, we urge you to decline his request to vindicate the constitution, to let us try this case.