The Volokh Conspiracy

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A Senatorial Impeachment Two-Step?

The Senate should bifurcate its impeachment inquiry: Remove from office now, Disqualify from Office-holding later


My initial instinct, when discussions began in earnest about a second impeachment proceeding in the immediate aftermath of the attack on the Capitol—was it really only one week ago?!—was to dismiss the prospect as too blunt and unwieldy for the task at hand.

There can be no question that President Trump committed impeachable offenses in connection with the events of (and leading up to) Jan. 6. But the Senate can only remove a president from office after it has convened a "trial"; the Constitution uses the verb form, giving the Senate the power to "try," not to "decide" or to "hold hearings" or to "consider," impeachment. And it seemed to me, as a matter of fundamental due process to which even a president who has committed impeachable and perhaps even criminal acts is entitled, that a "trial" requires giving the defendant adequate notice of the charged offenses, allowing the defendant time to prepare a defense, allowing him to present evidence and to question witnesses, etc. etc.

All of which would clearly be impossible to achieve before Jan. 20, when the primary object of such a proceeding—the removal of President Trump from office—would already have occurred.

But Ilya Somin's post (The Case for a Swift Impeachment), and some additional reflection and study, has convinced me otherwise. It's true that the Senate must conduct a "trial," but as Ilya points out, that hardly requires the sort of full-blown due process protections that would be required in a criminal or quasi-criminal proceeding.

Donald Trump surely has a constitutional right not to be deprived of his life, his liberty, or his property without the full panoply of due process protections, including the right to an attorney, to confront witnesses against him, etc.

But removing him from office is not such a deprivation. He does not have a constitutional right to exercise presidential power, which was bestowed on him by the American people, and which can be taken away by their elected representatives in a constitutionally-sanctioned impeachment proceeding. Given the threat his continued exercise of that power poses to the nation, I see no reason why it cannot be taken away from him via some sort of summary Senatorial proceeding.

Removal from office, of course, is not the only post-conviction remedy available to the Senate in an impeachment proceeding; it may also impose a "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States."

Disqualifying Donald Trump from future office-holding would be a significant step forward in the process of healing the many wounds he has inflicted upon this country. It would allow—not guarantee, but allow—the Republican Party to reconstitute itself as a voice of principled conservativism, rather than of slavish devotion to whatever whims had seized Donald Trump that morning.

Disqualification, however, changes the due process calculus rather substantially.  Donald Trump, like any other "natural born Citizen … having attained to the Age of thirty five Years," does have a constitutional right to run for and be elected to the Office of president, and depriving him of that right via some sort of summary proceeding strikes me as constitutionally improper.

The solution seems pretty straightforward: A bifurcated impeachment proceeding.  Remove him from office immediately and summarily; then, in Part 2, consider whether the charges warrant disqualification from future office-holding in a more extended proceeding that gives (ex)-president Trump the opportunity to defend himself.

Indeed, the Senate can make its final judgment contingent upon the completion of a full-blown Part 2 impeachment trial, as a way of reassuring any Senators who might be uncomfortable denying the President his "day in court" in a Part 1 summary proceeding. The Senate's Part 1 judgment, ordering the President's removal, could include a provision to the effect that the judgment would expire, and would be expunged from the record and of no further force and effect, unless the Senate convicts in a full-blown Part 2 proceeding within __ months. [by which time, obviously, his removal from office would be a literal fait accompli.]

Now that Vice-President Pence has stated that he will not invoke the 25th Amendment, this would seem to be the one remaining route to accomplishing a very important goal: Removing Donald Trump from office and preventing him from using the final days of his presidency to inflict further damage on the republic. The days leading up to and including Inauguration Day could well be very difficult ones, and he has amply demonstrated that he should not be entrusted with the powers of the presidency during such times.