Forty-five Republican senators voted this week against trying Donald Trump on the charge that he incited the Capitol riot, maintaining that it is unconstitutional to consider the article of impeachment against him now that he is no longer president. That argument is very convenient for Republicans who do not want to alienate Trump's supporters but also do not want to defend the conduct that led to his impeachment. But the fact that the argument is convenient does not necessarily mean it is wrong. While many prominent legal scholars think Trump's trial is perfectly constitutional, the dissenters make some interesting points that are bound to come up again during the trial.
As Reason's Damon Root has noted, there is historical precedent for impeaching or trying federal officials after they leave office. William Blount's case was sent to the Senate for trial in 1798 after he had been impeached by the House and expelled from the Senate, and former Secretary of War William Belknap was impeached in 1876, after he resigned. The House conducted an impeachment investigation of Vice President John C. Calhoun in 1827 based on his conduct as secretary of war, a position he no longer held. As a congressman in 1846, former President John Quincy Adams said he was "amenable to impeachment by this House for everything I did during the time I held any public office."
Last week 150 legal scholars, including Federalist Society co-founder Steven Calabresi and several Volokh Conspiracy bloggers, signed a statement arguing that trying a former president is consistent with the text of the Constitution and the purposes of impeachment. Although Trump can no longer be "removed from Office," they noted, he can still be disqualified from "hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States" if he is convicted by the Senate.
"The Constitution's impeachment power has two aspects," the statement says. "The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power."
Limiting the option of disqualification in the way that critics of Trump's trial suggest, the legal scholars warn, would create perverse incentives. "If an official could only be disqualified while he or she still held office," they say, "then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate's final conviction vote. The Framers did not design the Constitution's checks and balances to be so easily undermined."
The statement also notes that the Framers worried about "the danger of a power-seeking populist of the type they referred to as a 'demagogue' rising to the highest office and overthrowing republican government." They "understood that the source of such a person's power does not expire if he or she is expelled from office; so long as such a person retains the loyalty of his or her supporters, he or she might return to power." They "devised the disqualification power to guard against that possibility, and would surely disagree that a person who sought to overthrow our democracy could not be disqualified from holding a future office of the United States because the plot reached its crescendo too close to the end of his or her term."
George Washington University law professor Jonathan Turley, by contrast, thinks the constitutionality of trying a former president is "a close question upon which people of good faith can disagree." He concedes that the Belknap case shows "a majority [of senators] viewed impeachment as extending beyond removal for the purposes of a trial," although he notes that Belknap was acquitted. As for Blount, Turley says, he "did not even show up because he contested the very basis for an impeachment trial of a private citizen," and "the Senate refused to hold a trial."
Turley suggests that trying a former president creates some puzzles. "The primary stated purpose of the trial is to determine whether 'the President…shall be removed,'" he writes. "At the second Trump impeachment trial, the president will be Joe Biden, not Donald Trump. So the Senate will hold a rather curious vote to decide whether to remove a president who has already gone. Moreover, Chief Justice John Roberts is not expected to be present to answer these questions because there is no president to try. Article I states 'When the President of the United States is tried, the Chief Justice shall preside.' So the Senate will get someone else. The question is who is being tried. Is he a president? Obviously not. Is he a civil officer? No, he is a private citizen. A private citizen is being called to the Senate to be tried for removal from an office that he does not hold."
Former 4th Circuit Judge J. Michael Luttig thinks such textual difficulties show that "the Senate's only power under the Constitution is to convict—or not—an incumbent president." Turley, who describes the question as "an unresolved issue of constitutional interpretation," is not so sure. But he is skeptical of the idea that disqualification should be viewed as a remedy independent from removal.
"Removal is stated as the question for the Senate to answer in the trial of 'the President,'" Turley says. "The Senate may, in its discretion, add disqualification after a president has been removed. The second optional penalty language was expressed as a limitation on the authority of the Senate and again references removal: [The judgment] 'shall not extend further than to removal from Office, and disqualification.' Since the Senate does not have to disqualify, it would not seem to be an interchangeable or equal consideration in that respect."
Leaving the constitutional question aside, Turley worries that allowing impeachment and trial after a president has left office will invite partisan vendettas. "These scholars are arguing that Nixon could still have been impeached and removed after he left office," he writes. "Indeed, there is no time limit to such retroactive trials, which could come years later as easily as [they] could come weeks later….Under this approach, any new Congress could come into power and set about disqualifying opponents from public office despite their being private citizens. A Republican Congress could have retroactively impeached Barack Obama or retried Bill Clinton. They could insist that there is no escaping impeachment by merely leaving office. That is why, even if the Senate does not view this as extraconstitutional, it should view this trial as constitutionally unsound."
Stanford law professor Michael McConnell, a former 10th Circuit judge, is not impressed by these objections. "Whether a former officer can be impeached is beside the point," he says. "Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible." He notes that the Constitution says "the Senate shall have the sole Power to try all Impeachments." Since that clause "contains no reservation or limitation," McConnell argues, it is clear that the Senate has the authority to try Trump.
Whatever you make of these arguments, it is not exactly clear what a Senate trial is meant to accomplish in this case. Trump's impeachment, which was backed by 10 Republicans in the House and gave him the dubious distinction of being the only president ever to be impeached twice, already has served as a strong rebuke that will always be a stain on his record. If a handful of Republicans in the Senate vote to convict him, that stain will be a bit darker. But given that 45 senators did not even want to hold a trial, it seems clear that Trump will not be convicted and therefore will not be disqualified from seeking the presidency again.
There was initially some hope that Trump's trial would catalyze a Republican repudiation of him, helping to free the GOP from his malign influence. But it now looks like all but a few Republican senators have decided that their careers still depend on kowtowing to Trump and his many ardent followers. Even Senate Minority Leader Mitch McConnell (R–Ky.), who just last week said Trump "provoked" the deadly attack on the Capitol with "lies," voted against taking up the article of impeachment. McConnell, who reportedly thinks his party's continued viability depends on distancing itself from Trump, apparently has concluded that will not happen anytime soon.
[The first reference to Blount's impeachment has been revised to reflect the fact that the Senate did not reach the merits of his case.]