Impeaching Officials While They're in Office, but Trying Them After They Leave

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From Prof. Michael McConnell (Stanford), a leading constitutional scholar and legal historian:

Much of the discussion of the constitutionality of trying Former President Trump on impeachment charges after he has left office consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed. Not enough attention has been paid to the constitutional text, or the timing of this particular impeachment.

Whether a former officer can be impeached is beside the point. 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 (putting aside any disagreements over the nature of the charges).

Article I, Section 3, Clause 6, states: "The Senate shall have the sole Power to try all Impeachments." The key word is "all." This clause contains no reservation or limitation. It does not say "the Senate has power to try impeachments against sitting officers." Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.

Article II, Section 4, states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.

Article I, Section 3, Clause 7, states: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law." Read together with Article II, Section 4, this means that the consequence of conviction on impeachment must include removal from office, may include disqualification from future office, and may not include any other sanction. The first sanction is limited to sitting officers, which makes sense. The second sanction is not so limited.

Some argue that the conjunction "and" in Article I, Section 3, Clause 7, implies that the sanction must include both removal and disqualification, and that because removal of a former officer is not possible, disqualification must also not be allowed. But the clause does not say that both sanctions are required; it says that the judgment may not go beyond imposition of both sanctions.

I have not seen any answer to this textual point from those who think the trial of Mr. Trump would be unconstitutional. They ignore the fact that he was properly impeached (at least, insofar as timing is the issue), and they ignore the text of Article I, Section 3, Clause 6, which states that the Senate may try "all" impeachments. They conjure up a limitation on the Senate's power by a misconstruction of the sanctions limitation of Article I, Section 3, Clause 7. And, of course, they bolster their argument with motivated reasoning about consequences for the republic, which are no more persuasive than the motivated arguments coming from the other side.

I suppose that if there were powerful historical evidence that this was not the understanding of the founders, we might have a debate between text and historical understanding. But the historical evidence supports the text. The two British impeachment trials prior to the Constitution both involved former officers, and the first impeachment trial under the new Constitution involved a former Senator. The only respect in which history may clash with text is that history does not support the conclusion that only a sitting officer may be impeached—an issue distinct from the question of trial, and not relevant to the current situation.

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  1. “Some argue that the conjunction “and” in Article I, Section 3, Clause 7, implies that the sanction must include both removal and disqualification, and that because removal of a former officer is not possible, disqualification must also not be allowed.”

    I agree. That’s the meaning of a logical “and.” Otherwise it would have said “or.”

    “But the clause does not say that both sanctions are required;”

    Yes, it does. That’s what “and” means.

    1. Just to be clear …

      The Framers used the examples that occurred right before they wrote this.

      And those same people that wrote it were around (and some involved) for the first impeachment of William Blount in 1799 … after he had been expelled from the Senate.

      But somehow you, Publius, now understand this better because you have a better grasp of how they were using grammar and conjunctions than they did?

      Okay. I mean, that’s impressive. I personally wouldn’t appoint myself such a medium that I could so easily ascribe meaning to Zombie Madison and Zombie Hamilton with such alacrity and authority (other than they’d probably be saying BRAIIINNNSS!), but good for you!

      1. “And those same people that wrote it were around (and some involved) for the first impeachment of William Blount in 1799 … after he had been expelled from the Senate.”

        You’re making the exact mistake the OP was explaining: Blount was NOT impeached after he was expelled. He was tried after he was expelled.

        US Senate, The first impeachment.

        1. Ugh, I got caught in the imprecision of my own words. You are correct. 🙂

          I was agreeing with the OP regarding William Blount, but I ended up using the incorrect shorthand. Happens to us all. Mea culpa.

      2. These same framers that thought the Alien and Sedition Acts of 179? were just peach keen and did not violate the First Amendment?

        A reliable source.

        1. I mean, I could point out the irony of you literally just trying to mock the people who drafted and ratified the Constitution … the actual contemporaries, as being reliable sources. As compared to you!

          Instead, I’d point out that most of what you think of as “First Amendment TRUTHS!” are just a product of your modern understanding of it, primarily due to PROGRESSIVE and LIBERAL court decisions in the 20th Century. You’re welcome!

          PS- The whole issue of whether the First Amendment was even about prior restraint or punishment remained unsettled for some time. Heck, did you know that the phrase “the greater the the truth, the greater the libel” still existed in America after ratification? You can thank Hamilton (People v. Croswell) for resurrecting the old Roman bon mot of truth as a defense in ‘Murika. 😉

          1. Yes, I am mocking Adams. He was good at some things, an imbecile at others.

            You think being a framer made him perfect? You obviously think government paychecks prove competency … except for people you don’t like.

            1. “Yes, I am mocking Adams. He was good at some things, an imbecile at others.”

              Wow. Adams passed it all by himself?

              And people complained about Trump’s Executive Orders!

              1. He signed it instead of vetoing it; recall that one of the expectations of Presidents was as a last chance vetoer of unconstitutional bills.

                He also directed his staff to enforce it.

                No, this is not about Trump. Yes, you have TDS.

                1. That was a joke, which you would have recognized if you weren’t as humor impaired as history impaired.

                  But there were actual … people … in some kind of organization (split into two parts) that had to draft and pass that law, right?

                  Or maybe not, since you are the Knower of Constitutional things. Tell me more!

                  1. That was a joke, which you would have recognized if you weren’t as humor impaired as history impaired.

                    That’s rich coming from the same clown who, prior to Trump’s presidency, once claimed here that Richard Nixon was the only U.S. president to have ever been impeached.

                2. This is what turned me against Bush. If a President signs a bill that he feels is unconstitutional, then what is the point of the President?

                  Adams shat on the First Amendment. His history no more forgives that than the reality that Benedict Arnold was a terrific military leader for us forgives what he did.

            2. “You think being a framer made him perfect?”

              No. I think what he’s saying is that being a framer makes them a more reliable source for its intended meaning than you.

          2. Let us cut to the chase: how do you think the Alien and Sedition Acts did not violate freedom of speech and the press? Tell us, O Wise Mocker, how that simple literal text could be so easily bypassed.

            1. “Let us cut to the chase: how do you think the Alien and Sedition Acts did not violate freedom of speech and the press? Tell us, O Wise Mocker, how that simple literal text could be so easily bypassed.”

              Naw. I’d rather see you continue to lecture people about how the Constitution really works, based on your outstanding understanding of the debate surrounding both the First Amendment and its application in the 18th and 19th Century.

              Go on! Use some fancy words and teach me a lesson or two.

              1. Strong words from a guy who thought that Nixon had been impeached and removed. Maybe impeachment’s not your thing, Loki.

                1. Hey look! It’s the jerky misogynist that I never converse with, but who keeps replying to me because he’s an inveterate troll.

                  How’s that infantile name working for you? Still as funny as when you were in 5th Grade?

                  1. Two in a row where you insult rather than answer clear questions.

                    1. Because to engage in a conversation with you (sorry, to answer you CLEAR questions) is like cutting through steel girders with a dull butterknife. Sure, it can be done, maybe. But it takes a lot of time, and why bother?

                      The very brief answer is that the First Amendment was nearly untested in terms of legal decisions for the 18th and 19th centuries; a lot of what we would think of as federal censorship (including by the Post Office) went by unremarked.

                      When people discuss it today, it is always with the understanding that TODAY they would be unconstitutional. But that wasn’t the understanding AT THE TIME.

                      The specific debates around the A&S Act were heated, but while it was proposed that by the Jeffersonians (and Jefferson) that they were unconstitutional and void, the primary argument was that they exceeded the enumerated powers of the federal government (this was a reflection of the whole BoR/enumerated powers argument).

                      Now, there were additional arguments- the Virginia arguments expressly referenced the idea of a free press and the addition of a FA, but the main motivating argument was what we would now view as federalism.

                      In terms of the overall “free speech” arguments, there was a fierce debate about what the FA protected- that’s the whole “prior restraint” issue (this was a big thing from the common law). Here’s the thing- that’s a really good argument! That that the FA codified the traditional protections of the common law (arguably, somewhat expanded) with regard to prior restraint, but didn’t protect you from being punished. Heck, there are still states that have criminal libel … not to mention modern FA jurisprudence started with … WW1 and seditious speech (Sedition Act of 1918, Schenk, Debs, Abrams).

                      On the other hand, the Jeffersonian wing strongly argued against that position, and or robust free speech protection (at both the federal and state level) as being necessary for republican self-government. Thing is- while that idea ended up “winning,” it wasn’t decided. Instead, it was the accretion of small things, over time.

                      But most of what you think of now in terms of what the FA “means” is the product of the 20th Century.

                      So the answer? Sure, it would be unconstitutional. Now.

                      Then? Well, it wasn’t. Because no court found it so. And it would have been unlikely for any court to do so in the 18th or 19th centuries.

                    2. “Because no court found it so. And it would have been unlikely for any court to do so in the 18th or 19th centuries.”

                      It would have really been unlikely before 1803, when judicial review was established. And by that time, almost all of the Alien and Sedition Acts had been repealed or expired. Largely because they were thought to be unconstitutional.

                    3. Wowzers!

                      It’s that woman hater who just can’t help himself. Why don’t you go and have a conversation with someone who doesn’t hate your guts? I know that person will be hard to find, but maybe someone who thinks like you do? You know, Aktenberg!

                      Have fun now!

                    4. Wowzers!

                      It’s that woman hater who just can’t help himself. Why don’t you go and have a conversation with someone who doesn’t hate your guts? I know that person will be hard to find, but maybe someone who thinks like you do? You know, Aktenberg!

                      Have fun now!

                      It’s amazing how you go from arrogant condescending asshole to insecure 10 year-old girl in the blink of a virtual eye.

                  2. Hey look! It’s the jerky misogynist

                    You’re going to keep some therapist very busy some day.

            2. Maybe the framers didn’t think the First Amendment prevented them from legislating against sedition. Even the modern interpretation of the 1A allows violations of freedom that pass strict scrutiny.

              1. Anybody actually defending the Alien and Sedition Acts kind of disqualifies themselves as anybody to be taken seriously.

                1. Yeah, I never take George Washington seriously either.

        2. Maybe you should consider that you’re wrong about what the people who enacted the First Amendment meant or intended. Isn’t it possible that they did not intend for it to prevent, as an example, the Alien and Sedition Acts?

        3. These same framers that thought the Alien and Sedition Acts of 179? were just peach keen and did not violate the First Amendment?

          Yes.

          The same framers who some look to for guidance on the applicability of the Foreign Emoluments Clause to the President.

          Glad we agree that just because the framers did something, that doesn’t make it constitutional. Because that sort of argument seems to get advanced a lot.

          1. On a deeper level, it’s issues like this that make real discussions about “pop originalism” (the originalism as it is sold to the public, or that people like to use as a cudgel without understanding as if the Constitution were a holy text revealed to them, even though they’ve never read it) so difficult.

            Textualism, by itself, is difficult, because we don’t think the same way, use words the same way, or even use grammar and clauses in exactly the same way as they did then. It is nearly impossible to read that text without importing our modern biases into it.

            But it gets even more difficult when attempting to divine intent; think about the level of disagreement people have today over a law, or text, or contract that we have today; why would we expect unanimity back then? From the very beginning, the people that wrote the document splintered into different factions and argued with each other over the meaning of the document that they had written … and some people argued with themselves (Jefferson, pre-presidency, had a very different view of some things than he did during his tenure … ahem).

            That’s not to say that these historical approaches aren’t helpful, or illuminating, but they are rarely dispositive. They are tools to help us understand things, and we should be skeptical of those who are trying to sell a particular version of history that advances a single understanding, that always seems to align with their own policy interests.

            1. loki comment – ” Textualism, by itself, is difficult, because we don’t think the same way, use words the same way, or even use grammar and clauses in exactly the same way as they did then. It is nearly impossible to read that text without importing our modern biases into it.”

              In many respects, understanding and interpreting wickard v filmore suffers from grasping the different use of grammar, verbage, clauses, etc. Jackson who wrote the opinion used phrases, language, etc that was somewhat unique to him and unique to the era. Even though I tend to lean conservative, I think Wickard was decided correctly, but at the same time, the language has caused several subsequent courts to misapply and/or misunderstand the holding.

      3. If only the framers had been competent with C++ we would not have these questions. IOW, you are responding to an argument by anachronism. NTTAWWT.

      4. It’s such a bad faith argument on ThePublius’s part. He doesn’t believe it; he’s just using it as a pro-Trump argument.

        Even on his own terms he’s not right; “or” would not be the proper choice. “and/or” would be. But his “‘and’ means ‘both'” just isn’t correct English. “Shall not extend further than” does not mean “must reach all the way to.” Does disqualification from future office extend further than removal and disqualification? No.

        “Ownership of pets in this building is limited to cats and dogs.” Does that mean that one is required to own both a cat and a dog? Only an idiot would think so.

        1. Country Club: We only accept whites and Jews.

          White Protestant: Well god damnit.

          1. “Whites and Jews” isn’t the same as “White Jews.”

            1. You’re very observant. In the example above, “whites and Jews” is disjunctive. It would only be the same as “White Jews” if the and is conjunctive.

        2. But you’re badly hacking at the text just as a rap at Trump.

          It makes no sense to suggest the House could impeach the sitting-yet-outgoing President specifically to bar him from holding public office in the future. That would make the notion of a conviction and the requirements to get a conviction in the Senate irrelevant.

          1. Huh? Nobody is suggesting that there are consequences to impeachment without conviction. We’re only discussing the potential penalties if there is a senate conviction.

        3. “And/or” is an abomination.

    2. Well, e.g., “The two punishments allowed for murder are execution and life in prison” Why is this not a correct use of “and” which is obviously disjunctive in its application? Perhaps because the constitutional text says “judgment”, singular and unitary, rather than “judgments”, plural?

    3. The word “and” has no meaning without taking into account the words that precede it: “shall not extend further than …” Does disqualification “extend further than” removal and disqualification? No, it doesn’t.

      1. With respect I believe you are begging the question., which is, despite the preceding language, whether the specified punishments arising from the Judgment are to be taken together or selected separately. The Stanford professor opts for the latter….rather, he believes that removal is mandatory, disqualification optional. But I’m that is certainly not the only possible meaning of the “and” …and the use of the singular “Judgment” to me implies that both punishments must be conjoined.

        1. The phrase “further than X (both A and B) is prohibited” does not strike me as implying that “lesser than X is also prohibited.” Therefore, A or B by itself is permitted.

          1. Yes. Any punishment short of A and B in total is fine under that language. A without B is fine. B without A is also fine as long as you can convince yourself it’s logical. Some other punishment that involves neither A nor B is fine, whatever it would be and as long as it didn’t surpass them in severity.

            1. Small additional note: per Article 2, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” So, B (disqualification) without A (removal) is not permitted for everyone (but presumably is for an ex-president).

            2. No, I don’t think some other punishment that involves neither A nor B is fine. A and B is the maximum sentence. C is not an option, even if it’s much less severe than either A or B, let alone both. A slap on the wrist is less severe than A or B, but it still extends further than A and B.

    4. “Please pay me attention while I make the exact claim demolished in the text directly above my comment.”

    5. Yes, but you are reading the and in isolation. The full sentence is “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law.” So the and involves what the maximum judgment would be “removal from Office, and disqualification.” If there was an “or” there, then the Senate could only impose one or the other. But the use of “shall not extend further than” makes clear that the judgment can extend that far or to any judgment less than that maximum.

      1. Please see my reply above.

    6. No, the language says “does not extend further than A, and B.” You can do one, the other, or both. You don’t have to do both. If both are not possible, you can still do what is possible.

      Breakfast [Impeachment] does not extend further than bacon [removal from office] and eggs [banned from further office]. You do not have to choose both, but you cannot choose what does not exist.

    7. If it said “or” people could argue that one precludes the other.

      The clause limits the maximum extent of the judgment but does not preclude a lesser judgment of only removal from office or only disqualification from office or even something less like censure or suspension for a period of time, although I’m not aware of anyone proposing the latter.

      In fact Representative Alcee Hastings was Impeached and removed from office as a Federal Judge in 1989, but the judgment did not preclude him from future office and he was elected to the House of Representatives in 1992 were he has served ever since.

      1. Alcee Hastings is not a good example, because as we keep getting told here on the VC, elected office is not an “office under the united states”, so the senate can’t disqualify someone from that. All it can do is bar future presidents from appointing the person to something.

        1. Following that logic then the Senate cannot remove Trump from office since he already left office and they cannot bar his reelection.

          1. Yes, exactly. If convicted in the Senate, they can at most cancel Trump’s 200K/year pension and prevent him from being appointed to an “Office of honor, Trust, or Profit under the United States”. So no future cabinet post or ambassadorship for Trump, boo-hoo.

            The Senate can’t stop him from being elected in the future, because election qualifications aren’t covered and people can still vote for whichever candidate they want, subject to the qualifications in the constitution.

            The other problem they have is that if he is being impeached as President, then the Chief Justice needs to preside over the trial. “When the President of the United States is tried, the Chief Justice shall preside.” He’s not presiding, so this isn’t a legitimate Presidential impeachment.

            There’s no “except if he’s out of office” in the Constitution. Procedurally, they can’t claim both that it’s okay to impeach because he was president at the time, but no need for the Chief Justice to preside because it doesn’t count as a presidential impeachment. It’s not internally consistent.

    8. “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States,

      The penalty for [specified offense] shall not extend further than a fine of $1000 and one year of imprisonment.”

      Does that mean the offender has to be both fined and imprisoned? I don’t think so.

      “Shall not extend further than” sets a limit, not a requirement.

    9. “Yes, it does”

      No it doesn’t.

      The constitution does not say “The penalty for conviction on impeachment shall be A and B”.

      What it says is that “The sanction for conviction on impeachment shall not go beyond A & B”

      Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:

      Those are two very different statements and they mean very different things.

    10. I agree with your analysis that disqualification can not be imposed without removal, therefore it can’t be imposed on Trump.

      But I’m not sure it’s dispositive, because it’s actually “, and”, I am not completely sure the comma doesn’t make it another clause. But they used commas much more freely back then and it may not have any significance.

      However we do know, from precedent not text, that disqualification does not automatically follow from conviction, either that or Alcee Hastings is holding an office he has been disqualified from.

    11. “But the clause does not say that both sanctions are required;”

      Yes, it does. That’s what “and” means.

      No, it doesn’t. “And” is the maximum penalty. “Judgment […] shall not extend further than [..] removal [..] and disqualification”.

      The whole point of this clause is to limit what the senate can do to a convicted officer. The status quo ante was that they could do pretty much anything they liked; the framers didn’t like that, so they set down the maximum sentence, which is removal and disqualification. But the senate can choose to remove but not disqualify. And where removal is impossible, it can still disqualify. If the framers meant anything else, they should have said so.

      Ditto for impeachment of former officials. The status quo ante was that they could be impeached, so if the framers meant to forbid that they should have said so.

      I think the mistake made by those who argue against impeachment of former officers is that they imagine impeachment is a new thing that the framers invented, so it exists only for the purposes they gave it. Thus we read that the purpose of impeachment is removal, so if removal is impossible there can be no impeachment.

      But that’s not true. Impeachment was something that already existed and was well understood by the public. Anyone who had ever been a public official of any kind could be impeached, for pretty much anything, and on conviction could be punished in any way. All the framers did was heavily restrict that. They said how impeachments should proceed, they limited what someone may be impeached for, and they set a maximum penalty, while pointing out that if the president felt this was insufficient he could prosecute the person in criminal court.

      But they did not limit who could be impeached. They could have, but they didn’t. They left it the way it was. And the way it was, the public meaning of the term “impeachment”, was that former officials could be impeached and convicted.

    12. The Chief Justice SHALL preside at the trial of the President If he does not, can we assume the President is not on trial, at least in the judgement of the Chief Justice? If the Chief Justice behaves as though the President is not on trial, perhaps more work is needed before proceeding.

    13. No. Without more, a ceiling isn’t a floor.

    14. The 116th Congress has dissolved — it is no more.
      As I understand it, any act of a legislature (i.e. the 116th Congress) that isn’t completed is dissolved when the body is.

      In other words, the 117th House has to vote a NEW Impeachment for the 117th Senate to try, the other one has expired.

      1. As always, you don’t understand a f***ing thing, Dr. Ed. The 116th House was gone 3 days before the insurrection. The 117th House, not the 116th House, is the body that impeached Trump. Nothing expired.

  2. We are all Originalists now. Therefore, we can cherry pick text and history and amalgamate as necessary to get the Orginalist decision that we want.

    Courts and judges now can say “see, it’s an *orginalist* decision, so therefore even you rubes should consider it legitimate.” Even supposed conservative judges are not immune from the magnetic draw of this idea we saw put into practice starting with Heller and ending in it’s natural conclusion of Bostock.

    1. I don’t see how anything is being cherry picked here. What is the counter argument to this clear cut analysis of the constitutional text.

      Before I read this I was at best on the fence about whether a trial was constitutional. Now it seems clear cut to me that the trial is constitutional.

      1. The constitutional text specifies that one and only one “Judgment” is permitted….one judgment, with two aspects or parts. Or so it could be argued.

        1. no, see above analysis.

          1. In what universe can a judgment impose only a single sanction?

    2. Why not show us what is actually wrong, instead of just ranting off-tangent? Could it be that perhaps you are pounding the table because you have no facts?

      1. Off tangent? The OP cites an Originalist analysis that ends up where a priori he wanted it to go, that the trial is constitutional. On the contrary, other people have in other places and in this very thread, make as convincing Originalist analyses that shows that it’s not. The issue is not what the Founders thought, it’s what people today think.

        We’re in the endgame now boys.

        1. And you still refuse to show where his analysis is wrong. Nothing to do with objecting to the endpoint, I presume, you are just lazy today. Maybe tomorrow you will bless us with your wisdom. But not today.

  3. This assumes Trump was impeached while in office. While, I understand, this is the modern view, the historical view would be that he was impeached when the managers marched over to the Senate and read the charge.

    1. I think this blog discussed this change of practice.

      1. It is not a change of practice. It’s a change of interpretation that was pushed by the House of Representatives, which benefits from the change in interpretation. If we go by the original meaning — whether public meaning or understood by the legislature — then Trump was impeached after he left office.

        1. I don’t think either meaning is explicit in the Constitution.

    2. If “impeachment” is perfected by only a majority vote in the House, and no other action needed, Then the Prof here that said articles could be added to, or edited up until it was delivered to the Senate was way off base. (It may have been Turley with that opinion)

      Regardless, its in the Senate. We know The CJ is not there, because Joe Biden is not there. The Senate is not impeaching a President.
      Which civil officer, or judge is sitting in the defendants seat? Because that is the only constitutional jurisdiction the Senate has in an impeachment trial

  4. Precisely, and I’m rather disappointed at how many otherwise smart people treat the trial as though it was the impeachment itself, rather than merely a consequence of impeachment.

  5. Very persuasive argument.

  6. On the merits:

    Instead of having separate Articles of Impeachment for the various legal theories of how Trump’s behavior was impeachable, they tossed all their legal theories (and factual claims) together in a single article. Thus a hypothetical Senator who thought Trump was guilty under one theory but not another would have to choose between convicting on an article which combines true and false theories, or acquitting on such an article.

    In such a case, I’d say the hypothetical Senator should put the cost of this dilemma on the House, the body which had the power to avoid this problem (with multiple articles) but didn’t.

    1. This brings to mind the curious case of the impeachment of Judge Halsted L. Ritter in 1936. The House impeached Ritter by a vote of 181-146 (hardly suggesting overwhelming sentiment which usually presages prosecutorial success in the Senate). The House drew up seven articles of impeachment, the first six alleging specific acts, the seventh combining them, alleging a pattern of bad behavior, bringing disrepute on the judiciary. The Senate acquitted Ritter on the first six articles, but convicted him on the seventh by a single vote (56-28), thereby removing him from office. On the separate disqualification vote, the Senate voted unanimously (76-0) AGAINST disqualification. Hilton would later sue for back salary in the Court of Claims, alleging that his removal had been illegal because it hadn’t found him guilty of a specific crime. The court held that the Senate was the final court of impeachment, and it had no jurisdiction to review its determinations.

  7. Yawn, yet another piece treating an impeachment trial as a legal proceeding, rather than a political act with legal trappings.

    Not starting until February 9 so only 100 more pieces to go.

  8. There’s also the question what “any Office of honor, Trust, or Profit under the United States” means. As I understand it, some scholars say that this phrase does not include elective offices, such as President. Thus, if the Democrats’ objective is to prevent Trump from being elected President in 2024, they would fail to achieve it even if they were able to get 2/3 of the Senate to vote to do so. Although I would personally prefer that someone other than Trump pick up his mantle, I find the idea of an impeachment proceeding offensive if the sole purpose is to bar the people from electing the President they prefer.

    1. That’s like this enormous issue that everyone seems to be assuming doesn’t exist, even though it’s the first thing that would occur to a 1L issue-spotting on a final exam. If the president is a civil officer, why would the impeachment clause need to say that “the President, Vice President and all civil officers of the United States” shall be removed from office on impeachment and conviction? Everyone seems to agree that senators can’t be impeached, and that you can’t disqualify someone from becoming a senator because they hold an elected position (the senate sure takes that position). Is there a difference between a “civil officer of the United States” and someone who holds an “Office of honor, Trust, or Profit under the United States”? If the president holds an office of honor, trust, or profit under the United States, then why doesn’t a senator? They are paid by the United States. I’m agnostic on the question, but everyone just seems to assume that it’s not a question at all because Trump.

      1. Ah heck, you beat me and did better.

      2. Senators weren’t elected positions when the issue came up at the time. Direct elections came later.

        1. They certainly were elected. Who elected them is irrelevant. Otherwise you’re stuck saying the presidency is not an elected position.

    2. The Constitution is pretty inconsistent here about “officer”. Article II, Section 4, says “The President, Vice President and all civil Officers….” as if the President and Vice President are not civil officers.

      Article I, Section 3, Clause 7 says “Office of honor, Trust, or Profit”. Is that the same?

      Lots of room to quibble either way.

      IANAL!

      1. “Office of honor, Trust, or Profit”

        Terms of art in England. All meant appointed officers

        An office of profit meant some salary or other remuneration. Some officials got percentages of receipts rather than a salary.

        Office of honor meant the only payment was the honor. An equerry to the King for instance.

        Not sure what office of trust meant. Google no help.

      2. Article I, Section 3, Clause 7 says “Office of honor, Trust, or Profit”. Is that the same?

        Yes, it is. At least that’s the position argued at length here on the VC by Profs Blackman and Tillman, and I think they have proved it convincingly.

    3. Impeachment and removal is always a political question. If 120 million people decide to vote for DJT, no congress present or future will be able to stop it. Congress will find some way to bend to the will of people. Conversely, some reluctant supporters will use impeachment as a convenient excuse not to support Trump anymore.

      As a rule in politics, if you are arguing about process you are losing the argument.

      As I mentioned below, i think Dems are doing Republicans a massive favor. Republicans need Trump as a martyr more than they need him on the ballot. If Trump runs again, either as a Republican or third party, he probably ensures the Dems a victory.

      A lot of Republicans will rail against the partisan trial, while at the same time be secretly happy to exclude him from the ballot.

    4. I said “some scholars say” that“any Office of honor, Trust, or Profit under the United States” doesn’t include elective offices. V Conspirator Will Baude seems to be one of those scholars. https://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/ The article comes from mid-2016 when hardly anybody seriously thought Trump would ever be President, much less impeached, twice.

  9. I am not convinced the wording is clear enough to sustain arguments either way.

    The comments about “and” verses “or” sorta ignore the fact that if or was substituted for and it would mean someone currently in office could be banned from running for another office but not removed from office; does anyone really think this is was anyone intended.

    I also wonder just when the clock starts ticking. Is it when the House votes to impeach or when the articles of impeachment are transmitted to the Senate. What happens if the House never transmits the articles to the Senate, or maybe delays the transmission till after the next election.

    Ginsberg famously made the comment that the South African Constitution was superior to the US Constitution; the difference was the pols who implemented the US Constitution did a better job than those implementing the South African Constitution.

    But my biggest gripe with the current impeachment process is even when the House vote was taken it seemed obvious there was no chance of conviction (same was true for the chance of conviction for the first impeachment). It is even more obvious now that the chance of conviction is slim to none. Combined with the fact that there are real time sensitive issues the Congress/Prez need to address makes it seem like a waste of time to have impeached someone who has no chance of being convicted in a trial.

    Schumer has made one of the dumbest claims I have seen a pol make in a long time when he said impeachment and trial are the only way to punish Trump. The articles of impeachment are basically charging Trump with incitement to insurrection and maybe sedition. There are laws against all these things and if there was a solid case against Trump there are plenty of prosecutors who would jump at the chance of putting him in jail. Problem with that is the case would be in criminal court and would be thrown out in a New York minute.

    Bottom line is the dems know the whole mess is a side show with no chance for success but are proceeding anyway. A classic case of something you can do but something you should not do.

    1. “Ginsberg famously made the comment that the South African Constitution was superior to the US Constitution; the difference was the pols who implemented the US Constitution did a better job than those implementing the South African Constitution.”

      For anyone who doesn’t have a knee-jerk reaction, this statement is (IMO) inarguably correct. As I repeatedly point out in different threads, there is a very good reason that countries never, ever, ever base their constitutions off of ours. The ideals and the Bill of Rights? Sure. The notion of a supreme written document? Yes. The system of governance …. no. Why?

      Because the system of government that we have set up doomed other countries to spectacular failure. The combination of difficulty to amend, aspirational and loose language, strong executive/bicameral legislature/first-past-the-post voting leading to two parties … inherently leads to political instability and (usually) one-party rule.

      America never went through this, despite “hiccups” (Civil War, Great Depression, Civil Rights Era) because there has always been a strong shared respect for the rule of law, shared values, and most importantly, shared norms. In other words, a desire to make things work.

      Because it’s not the Constitution that makes the people do the right thing, it’s the people that make the Constitution work.

      1. wait what? holding up South African as a model?

        lmao.

        You must mean Wakanda , because the South Africa of your pipe dreams of a constitutional republic does not exist.

        1. Um, woosh!

          I am guessing that you entirely missed what I read.

          Oh, wait …

          “For anyone who doesn’t have a knee-jerk reaction …”

          Never mind! You have a good one.

          1. That’s funny, coming from someone who said “(IMO) inarguably”. One of the serious problems with left-of-center Americans is that they commit the fallacy of judging things by intention rather than actual effect.

            1. You are so right!

              Look at you, smart guy! You just proved that a dumb old “left-of-center” American like me thinks stupid things like the quality the implementation of a document can matter.

              I am so stupid. Man, you pwned me! You’re going to lecture me about election fraud now, aren’t you?

            2. You didn’t get his point, likely because of tribalism. It’s not that South Africa is better than the US but that if you look at their and our constitution *on paper* ours is a bit lacking. You’re too busy with ‘but USA! USA!’ to get that nuance.

              1. Telling a constitutional convention in an emerging democracy to look to the U.S. Constitution as a model is just really bad advice.

                The original document was a political compromise agreed to among political elites that was crafted in extremely unique historical circumstances.

                The Bill of Rights, which contains some really good things for a modern state, were fairly toothless for most of their history, so a state which wants those things might look elsewhere to accomplish those goals.

                The Reconstruction Amendments, which are also good, failed to be correctly implemented for almost a century after passage.

                So really, a modern democracy should maybe look to our constitutional history to see the pitfalls in drafting, but as far as getting a template to work off in creating a constitutional document looking to ours would just be a silly thing to do.

                1. Agreed.

                  The two primary issues are:

                  1. If you were to start from scratch today (in other words, you weren’t already in America with reliance interests and/or a creepy cult of the Framers, except when they did things you disagree with), you wouldn’t use the US Constitution. Yes, it had features that for its time were great (it was written, it was “supreme”, and it had a Bill of Rights … for example). But all of those features have been used, copied, modified, and improved. In terms of the words on the page, “modern Constitutions” (Germany, Canada .. and yes, even South Africa) are superior. That doesn’t mean that the countries are better, or the implementations are better. But a lot of what makes the US Constitution “work” isn’t the words on the page- it’s the implementation. Norms. And the common law (court decisions) built up around it.

                  2. Moreover, as a basic PoliSci 101 / Basic Observation of the World Around You 101 would tell you, our system doesn’t function well. To the extent that the Constitution is a document of governance, its a mess. Not because, like now, we are debating a conjunction in it. But because the system it set up is prone to instability; this failure of presidentialism is a topic as old as, well, older than me. What is remarkable about America is that, for various reasons, despite the gridlock, lack of political accountability, and occasional civil war, we have never descended into authoritarianism as have other countries that adopted our system.

                  …which goes to the whole issue of implementation. Documents matter, but the implementation … that is so very important.

                  1. “To the extent that the Constitution is a document of governance, its a mess.”

                    Can’t argue with the results though. It gives us just the right amount of government that we need.

                    1. Oh goody! It’s that misogynist stalker that keeps replying to my comments.

                    2. You actually sort of can argue with the results, because one result was that we had a slavocracy for the first 70 plus years, which led to a Civil War. This was followed by setting up a system of government that resulted in apartheid/authoritarian enclaves in part of the country that lasted until 55 years ago.

                    3. “You actually sort of can argue with the results, because one result was that we had a slavocracy for the first 70 plus years, which led to a Civil War. This was followed by setting up a system of government that resulted in apartheid/authoritarian enclaves in part of the country that lasted until 55 years ago.”

                      Sure. Maybe slavery would have ended earlier with a different form of government. Although the rest of the British Empire had a much greater system of apartheid, they split up into different countries.

                    4. judging by the national debt, it’s given us about 28 trillion dollars more government than we need or are willing to pay for

          2. mmhm, you said that, Ginsburg’s statement that “the South African Constitution was superior to the US Constitution” was “(IMO) inarguably correct.

            You should keep repeating that argument on every thread, because there is nothing that i could say that could damage your credibility more than you comparing the US to South Africa. If you want to level up, try comparing the US to Venezuela.

            1. Look at someone who isn’t capable of understanding semi-colons. Punctuation marks, what do they do?

              “Ginsberg famously made the comment that the South African Constitution was superior to the US Constitution; the difference was the pols who implemented the US Constitution did a better job than those implementing the South African Constitution.”

              If you want to level up, try reading past the first grade.

              1. like I said, please keep repeating the argument that Ginsburg’s statement about the South African constitution “is (IMO) inarguably correct.”

                Over and over, on every thread, lmao.

                1. I do. I repeat it often. I repeatedly make the same point that a bicameral legislature, strong executive, and first-past-the-post system is untenable when you have both a) strong partisanship (as we do here) and b) weak norms.

                  The problem isn’t the words on the paper. It’s illiterate morons, like you.

        2. Scalia held the Soviet Constitution as a model. You are missing the point entirely.

      2. So a constitution like ours “inherently leads to political instability and (usually) one-party rule,” except in the one country that has such a constitution (because other countries “never, ever, ever base their constitutions off of ours”)? That seems close to a self-refuting statement. You are undoubtedly correct that a constitution doesn’t amount to much unless the people are committed to sustaining it, but it’s hard to say that a constitution inherently leads to certain results when the only actual example suggests otherwise.

        1. No. I’ve already posted on this numerous times, so I assume that this was known.

          It was fairly common in the 1800s. A lot of South American and Central American countries adopted our Constitution. Philippines. Liberia. There are some other you could look up- they all suffered from the same structural defects. (I would note that it’s not like it’s the fault of the Constitution in question, given new countries tend to instability, but the specific features in our Constitution always seem to produce the same outcomes in countries that are not ours).

          The one country that adopted elements of our constitution that I would say bucked that trend was Australia, but … it uses a Parliamentary system.

        2. Loki’s exactly right on this. Single executive distinct from the legislature and with unique powers has failed basically every single other place except in America because said executive uses his power to run roughshod over other branches.

          That makes allowing the American president ever more unilateral power very worrying.

        3. I have to agree with Loki here. The US Constitution has largely worked for the US but it is not a good model for other countries to follow.

          The problem is the US Constitution is not a coherent document. It is a series of muddled compromises between multiple opposing factions. Slave states vs Free states. Federalists vs Anti-Federalists. And there wasn’t complete overlap between these two sets of opposing forces, there were Federalists and Anti-Federalists on both sides of the Slave/Free division.

          1. “Largely worked” needs a big ol asterisk considering all the people it plainly did not work for for most of its history.

          2. The reason it has worked so well is that the first 2/3 of the republic states were much more important in governing, taxation, and spending than the Federal government.

            Imposing our constitution where there is no tradition of independent government by the states puts them at a disadvantage from the start.

            1. That’s a key point: The federal Constitution wasn’t a design for a complete government. It was a Constitution for the central government of a federation.

              Without functioning states jealous of their own authority, half the structure is missing.

              1. True, if you tried to unite a divided content (say Africa) into a single nation, using the US Constitution as a template, it MIGHT work.

        4. The US constitution inherently leads to political stability. With geographical representation, only majority parties well ever govern. No shifting coalitions of third, fourth and fifth parties. Judges are appointed for life, further resisting year-to-year political changes. The President gets 4 years, and usually 8 if they don’t mess it up. Senators are the most powerful elected representatives and they get 6 terms, and are almost impossible to defeat as incumbents. The Executive branch is populated with an entrenched cadre of career bureaucrats, further resisting change.

      3. Also, to (hopefully) knock out the partisan back and forth, Scalia made a stronger additional statement in front of congress where he argued the soviet constitution was far superior to the United States, on the basis that the Soviet Constitution actually had enforcement mechanisms built in to the constitution but the American one … I mean even basic judicial review was seen by some of the founders to be a stretch.

        The difference is that in America people actually bothered to enforce it.

    2. Schumer essentially restated the politician’s syllogism: We must punish Trump. Convicting him in the Senate and barring him from public office punishes Trump. Therefore we must convict him in the Senate and bar him from public office.

      1. or more plainly, we must stop the people from voting for the candidate of their choice next time, to save democracy.

    3. What she actually said was, in response to a question about Egypt’s new constitution and whether the drafters should use ours as a model was this:

      “You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?”

      1. Canada’s charter of rights isn’t worth the paper it’s written on.

      2. Canada tramples all over basic human rights like freedom of speech and the right to bear arms.

  10. Great. You can do it. But should you? I am allowed to get stinking drunk every night of the week – the law allows it and I can afford it.
    Schumer is drunk on his power and means to go as far as it can take him, undoubtably in search of national unity.
    The hangover will be legendary.

    1. meh. A lot Republicans privately want Trump disqualified, but also want the benefit of publicly supporting him. They are letting Shumer do the dirty work while they get to have their cake and eat it too, calling the whole thing a partisan sham.

      The reality is Schumer is doing the Republicans a massive favor. He is playing the bad guy. If Trump is not disqualified, he either runs as third party or runs in the GOP primary virtually guaranteeing a Democrat victory in 2024. Republicans need Trump as a martyr, but dont need him actually running for office again.

      1. You have to distinguish between Republicans and Republican office holders. Their interests often aren’t the same, especially at the federal level.

        The politicians want Trump disqualified, because he reached the highest office outside their gate keeping. He’s a threat to their stranglehold over one of the only two routes to power the system has been rigged to permit.

        That’s the only crime they care about.

    2. “Schumer is drunk on his power and means to go as far as it can take him.”

      Holding a trial on impeachment isn’t particularly far. In fact, it’s one of the core powers delegated by name to the Senate in the text of the Constitution.

      1. Is that why it has only been done a handful of times?

        1. It has only been done a handful of times because the House has only impeached a handful of times. Once the House impeached Trump (and there is no doubt that it did so legally), Schumer is simply performing his constitutionally mandated duty by holding a trial. So far as I know (please correct me if I’m wrong), the Senate has never refused to hold a trial after the House has impeached.

  11. Reality check.
    The dems are going to hold the trial unless they make a political judgement it is not going to help them consolidate power.
    The scribblings of an old example of calligraphy are simply not relevant.
    The articles and clauses being debated have no more relevance than the first, second, fourth, and fifth amendments.

    1. Exactly.

      Impeachment is politics.

      1. So are many judicial proceedings.

  12. It should not take a Prof. McConnell, or even a lawyer, to reach this logical conclusion. The partisan result of question of constitutionality should embarrass the GOP, just as the partisan result of impeachment vote in the house (watering down meanings of insurrection and incitement to violence) should embarrass Dems. Neither side has credibility.

    1. Lol. Is this a real argument? You thought this made an intelligent remark?

      1. “Lol. Is this a real argument? You thought this made an intelligent remark?” Well, my post was more remark than argument. That appears to be the same case for your post, though I cannot discern your beef. I’m happy to read specific criticism or argument if you so decide.

  13. William W. Belknap

  14. It’s just going to be a show trial, regardless of whether it’s legal or not.

  15. All nitpicking, paper work infraction charges, pretextual investigations, hopeless impeachments should be criminalized with the penalties for perjury and costs assessed to the personal assets of the plaintiff. They are all lawyer misrepresentations to a tribunal and unethical.
    The hopeless and time wasting impeachment is to prevent Trump from running in 2024. He has the most celebrity, charisma, and following of any potential candidate. Trump would win in 2024 by a wide margin. Democrats do not want to face that after the agonies the American voter will have endured under Biden.

  16. So we can impeach Obama in 2022 when the Rs take the house?

    1. Who is this “we” that you are speaking of …

      Oh … that’s United States Representative Marjorie Taylor Greene’s Music!

      I did not know we had you as a VC commenter. Welcome! Tell us more about your theories regarding Sandy Hook.

      1. What? Put down the pipe.

        No that would be impeachment for FISA abuse to illegally spy on a political opponent. Very Nixonian

        1. Did I misunderstand?

          Were you using the royal we?

          I am somewhat disappointed. Just … somewhat. 😉

          1. Thanks Hunter for your contribution but really put down the pipe.

            And you never answered the question since you went out into hyperspace on a tangent

            1. Did I not answer you?

              Huh.

              I’m a big believer in Jack Nicholson…. you know, go sell crazy somewhere else. We’re all stocked up here.

              1. I’ll answer your questions:
                Yes, No but i will invoke the royal FO to you, no

                And being a big Jack believer which has nothing to do with the discussion doesn’t make you look crazy at all, no way

    2. Yes, whenever the Rs next take the house they can and should impeach 0bama, just to make this point. They should openly say that they would not have done it were it not for the Trump impeachment. And that they hope once is enough.

      1. They should definitely disqualify Obama from running for president again. That’ll show him!

  17. This is one of the weakest arguments I have read. Most of the argument seems to center on the word “all” in the phrase “all impeachments”, which he seems to find dispositive on the point. But all the text needs to be read together, not in isolation. Surely, he wouldn’t argue that an impeached individual who had died could be “tried”.

    He cites the British impeachment of former officials, but under British law ANYONE was subject to impeachment. One need not even have been in government. (Impeachment in Britain had more consequences, even death in some cases). He cites the impeachment of Sen. Blount to back his case, but, if anything, it militates against it. Blount was impeached by the House on July 7, 1787. On July 8, the Senate voted to expel him. The next year Senate dismissed the case for want of jurisdiction. (Admittedly, this was on the point of a senator not being liable to impeachment. The Senate did not reach the question of whether a former official could be impeached.)

    The last claim is no historical evidence, but this is demonstrably false. The House of Representatives has impeached 20 individuals in U.S. history. There is only ONE precedent for trying a former official: the William Belknap case in 1876. However, there are three other cases in which the impeached individual resigned, and the Senate dismissed proceedings in all three, in 1873, 1926, and 2009.

    1. Its as if you can have 50 dictators waiving around EOs for a year suspending the constitution. But its totally legal.

      Of course its not!

    2. The impeachment of Judge Mark Delahay in 1873 (three years BEFORE the Belknap impeachment) may be particularly illustrative. The House impeached Delahay on March 3, 1873. The exact date of his resignation is unknown, but is evidenced by President Grant appointing a successor to his post on March 9, 1874, who was confirmed by the Senate the next day. The House took no further action in the matter, so, naturally, neither did the Senate. These facts perhaps suggest that the members of Congress thought the case mooted by the resignation.

      1. I found this NY Times article of Nov. 5, 1926:

        https://web.archive.org/web/20070930015140/http://128.91.58.209/Articles/19261105_EnglishResign.pdf

        The House impeached district judge George P. English, who resigned soon after that. The House managers then decided that “the primary purpose of the impeachment proceedings has been accomplished,” so they wanted the proceedings dropped. Key Senators indicated that the Senate would defer to the House.

        So what does this mean? What if the House had wanted to go ahead with the prosecution, what would the Senate have done? We don’t know because that’s not the way it went down.

        What if “the primary purpose of the impeachment proceedings” was to stop the person from holding office again? Would the same outcome have ensued?

        1. In the case of district judge Samuel B. Kent in 2009, Kent initially resigned before being impeached, but the resignation was only going to take effect in a year. So the House didn’t accept this and impeached him and exhibited the charges to the Senate. When the Senate notified Kent of the proceedings, he gave a new resignation letter to take effect promptly. The Senate let the President and the House know about this, and the House asked to drop the proceedings, which the Senate agreed to do.

          https://en.wikipedia.org/wiki/Samuel_B._Kent#Impeachment_proceedings

          In the English and Kent cases, the comparison could be to a prosecutor asking the court to drop the charges in the interest of justice – in contrast, if the Senate in these cases had voted to dismiss the charges over the House’s objection, then that might be more of a precedent for the Senate being *unable* to try a former officeholder.

          1. In their Impeachable Offenses (Congressional Quarterly, 1999), Profs. Emily Field Van Tessel and Paul Finkelman write:

            “When Illinois District judge George W. English resigned his post less than one week before his impeachment trial was to begin, he managed to do what neither Sen. Blount nor Secretary of War Belknap had been able to do. He avoided trial. The Senate quickly dismissed all charges against him. Perhaps the Senate looked back at the Belknap trial and concluded that it lacked jurisdiction or that it was simply not worth the time to try an official who was already out of office.”

            1. The *Times* article suggested the Senate acted on the House’s initiative in the English case – and this certainly seems to have happened in the Kent case.

    3. That the senate chose not to proceed in those cases proves nothing. It didn’t do so for lack of jurisdiction; it did so because it was a waste of time. There was no point in proceeding, and it didn’t feel vindictive. The Belknap case was different mostly because it was fresh. And probably also because he was a cabinet member, not a judge, so there was political capital to be made.

      1. I don’t suggest that the cases “prove” anything. The arguments on both sides of the question suggest there is no definitive answer. (Likely the Founders would have had differing views, which were never fully flushed out in debate). All cases are different and have their own particularities, but the fact remains that all three times an individual resigned after being impeached, the Senate either dismissed proceedings or never began them. (In the Delahay case, the House impeached, but never drew up specific articles of impeachment, which they presumably would have done had he not resigned. Having written no articles, obviously no articles were delivered to the Senate, so no Senate proceedings were ever begun.)

        (In the above I don’t include Belknap as one who resigned AFTER he was impeached, though this point elicited debate at his Senate trial. Belknap had tendered his resignation at 10:20 AM on March 2, 1876. The House impeached him later that same day. To this point, House Manager Rep. Scott Lord argued “the law takes no notice of fractions of a day, and that by well-settled principles and a long and unbroken series of decisions he should have resigned the day before he was impeached in order to escape the penalty of his crime.”)

    4. Surely, he wouldn’t argue that an impeached individual who had died could be “tried”.

      Of course he could be, and don’t call me Shirley. There just wouldn’t be any point to doing so, to the point that it would be seen as farcical, since neither removal nor disqualification would be on the table.

  18. Its obviously unconstitutional. So are the EO’s governors have been using to establish their dictatorships.

    If Trump actually incited a riot then arrest him and charge him. It is a crime.

    If people want to elect him in 4 years so be it.

    Sorry Eugene but the law profession and the judicial system has beclowned itself the last year. Neither the Covid EO’s nor this impeachment are in any way shape or form constitutional.

    That is not how any of this is supposed to work. But keep twisting words into pretzels to defend something unconstitutional

    We used to joke about Bill Clinton’s depends on what the meaning of is is”

    1. There were a few judges in Wisconsin and Pennsylvania who pointed out the obvious unconstitutional overreach of their governors and public health officers.

  19. None of the people referenced as precedent were convicted. That’s pretty important when determining constitutionality or not. Mostly, we have an argument on whether SCOTUS *would* rule it as unconstitutional if a conviction occurred (which we all know won’t, which makes this whole thing triply pointless).

    In addition to the constitutionality of impeaching a private citizen, there is also the open question of whether they could actually bar him from running for office. Office of Honor, etc. is English Common Law for appointed positions, not elected ones. You run into serious separation of power (and representative democracy) issues if the legislature can bar someone from being elected as the Chief Executive by will of the people.

    But, again, it doesn’t really matter BECAUSE HE WON’T BE CONVICTED.

    1. Whether they were convicted is irrelevant. The point is that the senate took the view that there was no problem with proceeding after their resignation.

      1. No they didn’t. They had the same arguments we are having now.

  20. Impeachment = Hyperinflation = Massive devaluation of trust

    In this instance, what is being massively devalued is trust in Congress. Not “will be”, but “is”.

    1. But there is no trust in Congress to devalue.

  21. If you are down to arguing conjunctions, well, enough said…

  22. For better or worse impeachment is primarily a political matter. The house can impeach almost anyone if it can obtain a majority. The Senate can impose the penalties specified in the Constitution if 2/3 of those present so vote.

    Unfortunately, the Federal Courts are unlikely to review these decisions because they are “political questions.” Given the 55 to 45 vote in the Senate on the motion to table, conviction is highly unlikely unless new evidence is discovered that amounts to the “smoking gun.”

    If a legal argument is significant, I would suggest 1) the Trump speech did not constitute “incitement ” and 2) the riot did not constitute an “insurrection.” But the Senators are free to decide almost anyway.

    1. I would argue that, indeed, the federal courts would not review a conviction as a final determination resting in the Senate, but they would review a question of jurisdiction, which is not a political question.

      Take, for example, an (admittedly extreme) case in which the House purports to “impeach” an individual who had never worked for the federal government, and the Senate purported to disqualify that individual from future office. I don’t think the courts would be hesitant to step in in such a case.

  23. No, Trump was not impeached while President as a matter of timing. The House of Representatives waited until January 25th, 2021 to impeach Trump before the Senate, and thus voluntarily chose to impeach a private citizen rather than a President of the United States.

    I should emphasize that they did not impeach him until after the natural end of his term to make it clear that the “what if the person resigns” arguments do not apply in this case. There is plenty of precedent in law to ignore a voluntary action made in an attempt to escape jurisdiction, and in such a case it might be proper to go ahead with the impeachment and trial of of an officer who by voluntary act ceased to be an officer. However, Trump did not take any action to evade impeachment; rather, the House chose to wait until he was a private citizen.

    Because Trump was not impeached (regardless of the timing of the vote to authorize impeachment) until Monday, January 25th 2021, the House of Representatives by its act is claiming a power to impeach private citizens in order to give the Senate an opportunity to disqualify them from holding office. You can believe that that is within the power of the House, of course. But let’s be clear on what power the House is claiming.

    1. “There is plenty of precedent in law to ignore a voluntary action made in an attempt to escape jurisdiction, and in such a case it might be proper to go ahead with the impeachment and trial of of an officer who by voluntary act ceased to be an officer. However, Trump did not take any action to evade impeachment; rather, the House chose to wait until he was a private citizen.”

      OK, but until your post, the arguments were along the lines of saying that the Senate cannot try a former officer even if they were impeached while still in office. That principle would, indeed, let officials resign to avoid impeachment.

      “Because Trump was not impeached (regardless of the timing of the vote to authorize impeachment) until Monday, January 25th 2021” etc.

      All right, that’s a good reason for the Senate not to assume jurisdiction. From previous Volokh posts I got the idea that the old rule – that impeachment occurs when the managers officially inform the Senate – had been replaced by a new rule – that impeachment occurs when the house votes impeachment. But I’d be fine with going back to the old rule – in which case, yes, Trump was a private citizen at the time of impeachment and hence immune under what I understand of the not-entirely-open-and-shut precedents.

    2. You think the act is the same as the transmittal? What’s your support for that?

  24. First post. (Please be gentle.)

    If impeachment and trial is indeed politics with the glitter of legal proceedings, then I think this trial is impermissible.

    Why? Because when the president is out of office the Madisonian heavyweight political battle between separate and equal co-branches of government is a sham. To use a pro-wrestling term; it’s a squash match. It’s like promoting Hulk Hogan vs Randy Savage at Wrestlemania V, but arriving at Trump Tower to see Hulk Hogan vs Lanny Poffo.

    The possibility of removal means the fight will be real. But a president already gone means the fight is phony. No bully pulpit. No grandstanding. No credible promises of patronage; no credible threats of retaliation. No (not enough) politics in a political trial.

    The trial of a former president is merely dancing atop a grave. Fine, if you’ve killed the man, but not if he’s already dead from natural causes.

    There’s more, but I’ve gone on long enough. I hope I haven’t repeated the obvious.

  25. The argument is well put together but it relies on one word to sweep away the import of Art 2, Sec 4. McConnell agrees that text of that article seems to applicable only to sitting officers.

    From the McConnell:
    Article II, Section 4, states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.
    (end quote)

    However McConnell argues that the “all” in below clause negates that implication.

    Art 1, Sec 3, clause 6
    The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

    But would McConnell also insist that the “no person” text in that same clause negates the implication in Art 2, sec 4 about who is to be subject to impeachment and conviction?

    An alternate interpretation of “all” in the above is make clear that while there is a sort of hierarchy (when the president is tried the CJ sits) the Senate itself is to try impeachments no matter they be of the president, VP, or any perhaps lessor civil officer of the US.

  26. Cal,
    Thanks for the link to “When is an Officer Impeached”. Lee Moore’s comment (below) in that thread is spot on.

    “Why is this an “utterly academic” question ? It seems to me that it has immediate practical implications. If the officer has been impeached, then the Senate can get on and try him. If he hasn’t, it can’t.”

    This seems to be perfect fodder for a new thread rehashing “When is an Officer Impeached” but with actual consequence.

  27. A quick Ctrl/F reveals that the term “Bill of Attainder” was not mentioned in the discussion above. Just correcting that.

    In other words, the edge of the fiat of the High Court of Impeachment isn’t a question of ultra vires, but instead runs slam-bang into a flat constitutional prohibition. Under this standard, anyone who has ever been subject to impeachment as a federal officer will always be subject to public criminal trial in the upper chamber.

    ‘This bill does not contain a word to the effect that Mr. Nixon is guilty of any violation of the law. It does not inflict any punishment on him. So it has no more relation to a bill of attainder . . . than my style of pulchritude is to be compared to that of the Queen of Sheba.’
    (Hon. Sam Ervin, quoted in Nixon v. GSA)

    Mr. D.

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