Two Flaws In The “January Exception” Argument

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Two Flaws in the “January Exception” Argument; There Can Be Accountability, and Maybe There’s an Unintended Loophole

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The "January Exception" Argument

WASHINGTON, D.C., (February 9, 2021) - In arguing that the Senate does have jurisdiction to try Donald Trump even though he can no longer be "removed" ("The President . . shall be removed . .") from his former office, the House managers rely heavily on their ingenious "January Exception" argument; that "there is no January Exception to the Constitution that allows presidents to abuse power in their final days without accountability."

But that argument appears to have at least two possible flaws, suggests public interest law professor John Banzhaf.

First, if a sitting president engages in wrongdoing during his final month - or even final week - in office, he is not beyond "accountability" if his acts amount to a crime.

There seems to be almost universal agreement that, while it may not be possible to convict a person of a crime while he occupies the office of president, he can be indicted, tried and convicted once he is no longer shielded by the protection afforded by the office.

This of course includes crimes for which he can be imprisoned that he may have committed even while in office, provided that the statute of limitations has not run.

Similarly, and in most cases in addition, he can certainly be sued civilly for any damages he may have caused during that final month or so in office, provided his conduct amounted to any one or more of the wide variety of civil wrongs (torts); which includes wide-ranging ones such civil conspiracy and prima facie tort, but also more common ones such as battery (intending and then causing bodily harm).

Trump Accused Of Causing A Destructive Riot Or Insurrection

In the case before the Senate, Trump is accused of deliberately causing a destructive riot or insurrection. If he in fact did so, he could surely be held liable civilly for tens of millions of dollars in civil judgments, including wrongful death and probably including punitive damages, so he would not escape "accountability."

He could also be convicted and imprisoned for various federal and local criminal violations. Indeed, at least two House Democrats have asked the FBI to investigate, saying they believe "Trump engaged in solicitation of, or conspiracy to commit, a number of election crimes."

In brief, a president would enjoy a "January exception" to engage solely in wrongdoings which constituted "high crimes and misdemeanors," but which somehow did not violate any federal or local criminal statutes, nor give rise to any civil legal actions for damages.

For such a set of circumstances to occur, and to occur without such a brief time span that a Congress, outraged by the actions, would not have time to speedily impeach and try him, seems rather unlikely.

The House managers also argue that the founders would not have wanted to create such an incentive for a president to act wrongfully in his final days in office.

The Impeachment Portions Of The Constitution

While that may seem quite logical, it assumes both that the founders carefully considered and debated that very remote possibility, and then deliberately wrote the impeachment portions of the Constitution so as to not make that intent clear.

But whether interpreting laws or the Constitution, judges must be guided primarily by what the drafters actually wrote, not what they may have intended about something they may not have even thought about.

There are dozens if not hundreds of cases in which courts found that a statute contained an inadvertent loophole - an exception which the drafters had not intended, and which they failed to anticipate with appropriate language.

In such situations, people cannot be punished civilly nor convicted criminally based upon what legislators probably would have written if they had had the foresight to anticipate that very problem.

Resolving The Uncertainity

So, while it may be true that the founders, if they had only thought it through, may not have wanted former presidents to be able to run for office again if their non-criminal and non-civil wrongdoing occurred in January, it seems more likely that they never thought about it, much less debated it.

No amount of dramatic videos and emotional arguments concerning this riot can change that basic fact.

If they had, certainly one side or the other would be arguing this vital historical information.

Furthermore, had the founders actually considered the "January Exception" problem, they certainly had the drafting skill necessary to make their intentions clear, suggests Banzhaf.

So, while able constitutional scholars can and do disagree about whether the Senate now his jurisdiction to try a former president no longer in office, inventing a catchy phrase like "January Exception" does not help to resolve the uncertainty.