Trump Impeachment Trial — The President Is Not ‘Our Commander in Chief’


Then–President Donald Trump departs the White House, January 12, 2021. (Kevin Lamarque/Reuters)

Most of the time, when prosecutors are delivering long planned addresses during a trial, there are no inadvertent assertions. And when assertions are repeated by multiple prosecutors, that’s not a mistake; it’s a theme, and it’s significant.

The House Democratic impeachment managers today, in the first formal day of presenting evidence (albeit, sans witnesses), repeatedly referred to former President Trump as “our commander in chief” during the January 6 rioting and, especially, the days running up to it as the so-called stop-the-steal rally was being planned. The Democrats are clearly doing this on purpose, and disingenuously.

A sitting president is not the nation’s commander in chief, nor every American’s commander-in-chief. The president is the commander in chief of the armed forces of the United States. The designation relates to our constitutional commitment to civilian control of the military. Where the armed forces are concerned, someone has to be vested with ultimate command authority. In our system, that’s the president. But vis-a-vis ordinary Americans and the republic in general, the president is not our commander. He is a public servant. The president works for us, not the other way around.

So why are the Democrats doing this? Because there is a hole in their case.

The House charged Donald Trump with incitement, but — as we’ve covered several times — Trump is not guilty of incitement in the criminal-law sense. In the colloquial sense, incitement may not be an unfair word. As the House managers have effectively shown this afternoon, the former president stirred up his supporters with claims that the election was stolen, and egged them on to “fight” against the formal recognition of (now) President Biden’s victory. The rhetoric was dishonest and inflammatory, but it does not rise to the level of criminal solicitation of the violent rioting that occurred at the Capitol.

Realizing this, the House managers are taking a different tack. They are referring to Trump as the commander in chief of Americans — including, obviously, his supporters. The sleight-of-hand is: Supporters legitimately understood Trump to be their commander, they understandably felt obliged to follow what they took to be his commands. When he said “fight,” the House managers not-so-subtly imply that his followers were in the same position as soldiers whose commander has ordered them to attack.

This is a specious argument. The president has no power to command private citizens to carry out orders as if they were in a military chain of command, much less to use force at what they understand to be his direction. It is irresponsible for Democrats to suggest otherwise — they clearly would not want to live in a country where the president has such power.

As I’ve argued previously, Trump’s status as commander in chief does have important relevance to the impeachment case. As commander in chief of the armed forces, he had the authority and the obligation to deploy force as necessary to repel the violent attack on the Capitol. That is, to the extent that he failed to send forces that he actually did command to the Capitol in order to protect the vice president, lawmakers, security personnel, the public, and the facility itself, he was guilty of dereliction of duty.

Although the House failed to include a dereliction charge in its impeachment resolution, the House managers included it in their pretrial memo and clearly intend to introduce pertinent evidence at the trial. In a judicial criminal trial, that would be a due process violation, but in an impeachment trial, the Senate may consider it if it chooses to.

But the House managers’ incessant claims that Trump was the commander in chief of the country and of his followers are not just wrong, they are prejudicially misleading. In a real trial, there would be an objection, the judge would admonish the prosecutors to stop doing it, and then instruct the jury that the president was not, in any formal legal sense, the commander of the rioters. Because competent prosecutors know that being dressed down like that in front of the jury is very damaging to their case, they resist such legerdemain. But that is the difference between judicial and political trials — between due process and anything goes.

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