More on Impeachment Trials of Former Officials

From Sen. Mike Lee, Prof. Eugene Kontorovich, Prof. Philip Bobbitt, and Prof. Brian Kalt

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Thursday, Senator Mike Lee, himself an accomplished lawyer, published an op-ed concluding,

Although it is a close question, and the relevant constitutional text is susceptible to multiple interpretations, the most natural reading leads me to conclude that the Senate should not conduct an impeachment trial where, as we are facing today, the person impeached is no longer in office.

Article 1, Section 3, Clause 6 provides that "when the President of the United States is tried, the Chief Justice shall preside." And Article 2, Section 4 mirrors this formulation, stating that only the "president, Vice President, and all civil Officers of the United States" may be impeached.

These sections do not say that "a" president or "a former president" or "anyone who has served in that office" may be impeached. It says "the" president. There is a difference between "the" president and "a" president, and there can be no dispute that "the" president is not Donald Trump but Joe Biden. The former remained in office, and on that basis, was subject to impeachment until noon on Jan. 20, 2021. The latter was not subject to impeachment until that very same moment but now is.

Our own Prof. Eugene Kontorovich (George Mason) also published an op-ed Friday reaching the same conclusion (I hope he'll post an excerpt from it himself later today), and Prof. Philip Bobbitt (Columbia) had a similar post Wednesday at Lawfare, which begins:

Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol. Nevertheless, the Senate is making a mistake in holding a trial of the article of impeachment, which is scheduled to begin the week of Feb. 8, after the president leaves office. Doing so subverts the law in an effort to punish someone who subverted the law.

On the other hand, back in 2001, Prof. Brian Kalt (Michigan State) presciently wrote a whole law review article on the issue, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, which makes me especially pleased to pass along his response to Sen. Lee's op-ed (I would have happily posted the entirety of Sen. Lee's op-ed as well, but was reluctant to do that, given that it had already been published elsewhere):

Sen. Lee starts by saying that Article II, § 4 "stat[es] that only the 'president, Vice President, and all civil Officers of the United States' may be impeached." (That's not what § 4 states, to be precise, but it can be interpreted this way.) Lee contends that this means only "the" president may be impeached, not anyone who was ever president. But Donald Trump was president when the House impeached him on January 13. Lee does not—and cannot—argue that the House lacked the power to do this. And Article I, § 3, cl. 6 gives the Senate exclusive power to "try all impeachments," without saying anything to restrict the timing of the trial. Lee does not address this either. More broadly, he does not engage the distinction between the timing of the offense and the timing of the trial.

He also ignores evidence other places that the Constitution regulates the possible consequences of officials' actions. There too, the key is that the official was in office at the time of the offense, not at the time of the trial. For instance, the Speech and Debate Clause makes "senators and representatives" legally immune for their legislative acts—a protection that covers ex-senators and ex-representatives for acts they performed in office. Similarly, "members" can be punished by each house for disorderly behavior, and this power has been used to punish ex-members for things they did as members.

Lee next turns to Article I, § 3, cl. 7, which says that impeachment judgments "shall not extend further than to removal from office, and disqualification to hold [future office]." Lee says: "I read this clause—in particular, the use of the conjunctive 'and' rather than the disjunctive 'or'—to establish removal as a condition precedent to the remedy of disqualification. If a public official is subject to removal through the impeachment process, then he or she is subject to disqualification. If not, then the opposite is true."

Don't be thrown off by the lawyerly lingo of conjunctive, disjunctive, and conditions precedent; just read the clause. It provides an outer limit for impeachment consequences: the Senate can't go further than X-plus-Y. The point of the clause is that Senate cannot do Z, not that it must do X before it can do Y. (Separately, Article II, § 4 requires removal when applicable, though Lee does not mention that. In any case, that requirement is best read as keeping convicts out of office, not as protecting offenders from disqualification if they leave office first.)

The correct reading of Clause 7 becomes even more obvious when one looks at the whole clause. The clause's second half, which Lee omits, provides that impeachment convicts are still subject to whatever consequences the criminal law might dole out. This was a departure from British impeachment, in which impeachment cases were not separated from the criminal process in this way. In Britain, impeachment could result in the full range of criminal punishments. The American version needed to make clear that only removal and disqualification could be leveled; fines, prison, or death would not be on the table.

Lee's venture into constitutional history is short. He says that the Framers "chose a design that was different than the English impeachment system, under which any private citizen could be impeached." But this is still a non sequitur, given that Trump was impeached when he was president, for his actions as president. And it ignores the practice of states. Around the time the Constitution was drafted and shortly afterwards, multiple states impeached and convicted ex-officials for things they had done in office. Some did so on the basis of state constitutional language that tracked the federal constitution. The Framers understood this possibility and did not explicitly exclude it.

While removal was important, the Framers also intended impeachment to serve other functions. Impeachment would also deter public misconduct and, failing that, provide a forum to investigate perpetrators and hold them accountable. It would be odd if the Framers designed the impeachment system so that deterrence and accountability were no longer an option in the final weeks of a president's term. Indeed, it's hard to imagine Senator Lee refusing to try a Democratic president impeached in his last week in office for, say, granting a mass pardon to all Antifa members. But these structural considerations are absent from his discussion.

Finally, Lee considers two precedents. He points to how the Senate dismissed the impeachment case against ex-Senator Blount in 1798—but skips over all evidence that the dismissal was because of the "senator" part and not the "ex" part.

Next is the impeachment and trial of ex-secretary of war William Belknap in 1876. Lee admits that the Senate voted in favor of jurisdiction, but stresses that Belknap was ultimately acquitted. Lee is right that Belknap's acquittal does weaken the precedent somewhat, but he ignores that Belknap, unlike Trump, had left office before even being impeached—and thus that the case for jurisdiction in Trump's case is stronger.

Lee also leaves out some interesting partisan dynamics. The Republican Belknap was impeached unanimously by the House despite having already left office. Republicans had a solid majority in the Senate and a party-line vote would have been strongly against jurisdiction. But rather than toss the case, the Republican Senate held a serious, month-long debate. In the end, 13 of the 39 Republicans senators voted that there was jurisdiction, and the trial proceeded for two more months.

It is unlikely that the Senate will have a similarly serious debate this time. It is also unlikely that a similar proportion of Republicans will vote against their partisan interest. But it is worth noting that if they did, that same proportion (when rounded) would yield 17 Republican votes today—exactly the number needed to attain a two-thirds majority to convict.

NEXT: Two Attorney Positions Open at FIRE

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  1. At least the OPs noted
    “It is also unlikely that a similar proportion of Republicans will vote against their partisan interest.”

    Sad to say the bias should be obvious but because the OPs FAIL to realize this they also FAIL to note the reality not only that there are other reasons than “partisan interest” that could result in a vote not to convict but the bigger reality that the smart money is on Trump not being convicted.

    Bottom line is Trump is not going to be convicted and anyone with an IQ above room temperature knew it at the time he was impeached and know it now as well. While the dems were legally able to impeach Trump when he was the sitting prez they were also legally able to stick beans up their noses; and both show the same level of smarts.

    1. Bigots seem to dislike accountability.

      Their failure in the culture war seems to have made made them disaffected.

      1. Accountability would mean prosecution by the DC US attorney, not a show trial.

        1. Impeachment was not made criminal for a reason.

  2. Two words really sum up this argument.

    Occam’s Razor

    Really, notice the twisting and torturing and legalese and omissions in Sen. Lee’s position versus the plain, simple, unvarnished language of the Constitution here. It is truly amazing how partisan political views can force an otherwise intelligent and scholarly person to so subvert the text of the Constitution and to deliberately attempt to confuse the public with the argument that impeachment is not the indictment but the trial.

    But that is what subservience to a person, Trump, results in rather than adherence to facts and intellectual integrity.

    1. I see it the other way. The Constitutional language being simple and unvarnished, and supporting Mike Lee’s position. The process of House impeachment and Senate trial enables the removal of a president from office for criminal behavior. It does not let Congress use that process as a political weapon to keep a former president from running for office in the future.

      If Donald Trump committed incitement to insurrection, the Justice Department should indict him and he should be tried in the federal courts and punished if found guilty. He should have the same rights as any criminal defendant, including the right to appeal.

      It’s not like there’s no law against incitement to insurrection. Donald Trump is no longer immune to an indictment, and the law is even (in my understanding) enabling legislation for the punishment under the 14th Amendment that the House cites in its article of impeachment.

      18 U.S.C. § 2383 – “Rebellion or insurrection”. “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

      The trial in the Senate will just be a political show trial by the Democrats. It’s a disgrace.

      1. “If Donald Trump committed incitement to insurrection, the Justice Department should indict him and he should be tried in the federal courts and punished if found guilty. He should have the same rights as any criminal defendant, including the right to appeal. ”

        Amen, Amen! And skip the Putinesqie show trail

        1. An impeachment trial doesn’t preclude criminal prosecution. The accused would then have all the protections of any criminal defendant.

          1. Which is exactly why Democrats are avoiding a legitimate trial.

            1. Impeachment, of course, is legitimate.

      2. If the constitutional language supported Senator Lee’s position, he wouldn’t have to mischaracterize it. He says: “And Article 2, Section 4 mirrors this formulation, stating that only the ‘president, Vice President, and all civil Officers of the United States’ may be impeached.” Except it says no such thing. It actually says that, when those sorts of people are impeached and convicted, the penalty of removal is mandatory. I’ll quote the whole damn text because I’m a textualist in all weather: “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.”

        If I submitted a brief that mischaracterized a statute as badly as Mike Lee mischaracterizes Article II, sec. 4, I’d hope to heck that the judge didn’t bring me in for oral argument.

        The sad thing is, he could have made a non-frivolous argument without mischaracterizing the text. It would be a kind of weak penumbras-and-emanations type of structural argument that sec. 4 should be understood as implying that the P, VP and civil Officers are the only ones subject to impeachment. It would be the kind of argument that gets a paragraph or two of space at the end of a brief, but at least not the kind that gets the lawyer barked out of the courtroom.

        Matt Gaetz had the law right… back when he was fantasizing about impeaching Barack Obama in 2019: “You actually can impeach a former President.”

        1. If Lee is mischaracterizing the text in question, then you – apparently – think there are others than president, Vice President, and all civil Officers of the United States who may be impeached.

          Do you see where your rhetoric is breaking down here?

          1. Yes, indeed there are! At a minimum former Officers can be impeached and disqualified, *exactly* as was the case with the two most recent English impeachment trials as of the time of the Founding (Hastings and Macclesfield). At the risk of being repetitious, the actual words of article II, section 4 simply do not limit the scope of persons who are subject to impeachment. It sets forth a mandatory minimum penalty for any impeached and convicted person who also happens to be the President, Vice President, or other civil Officer.

            It’s more debatable whether persons who have *never* been officers can be impeached and disqualified. That’s not really an Article II issue because Article II is not what grants Congress the impeachment power; instead, that issue goes to Article I’s grant of power. The text of Article I is little help, so you look at history. Parliament had the power to impeach and convict commoners for high crimes (Blackstone discusses this), but had not exercised its power that broadly since the early 18th century. There’s a reasonable view that federal impeachment should follow the *late* 18th century English (and American colonial) tradition and apply only to (current and former) federal officers and judges. That view would also be consistent with the 5th Senate’s dismissal of impeachment articles against Senator Blount, who had never been an officer or judge. Whether people who have never been officers can be impeached is a close question (unlike the question of former officers), but fortunately we don’t need to decide that question now, because nobody has proposed to impeach and disqualify, say, Donald Trump Jr. for inciting the Capitol Riot. Based on what I know of the English tradition at the Founding, I would lean against allowing people to be impeached who have never been federal officers, but I could understand why it might be sound policy to allow the impeachment of, for example, a governor who led a rebellion against the Union.

            1. You are entirely wrong. The language is clear. Only current officers can be impeached.

              Anybody else is twisting the words of the Constitution.

              1. A brilliant textual analysis indeed! I look forward to trying out “You are entirely wrong, the language is clear” on my next responsive brief and seeing how it goes. Thanks!

            2. Hate to break it to you but the authors of the Constitution were not big fans of the way England governed. The whole bill of attainder thing pretty much points that out. Kindly point out where the constitution authorizes impeachment of anyone outside of those categories I listed.

              1. As much as anything, they viewed King George III’s regime as a deviation from the tradition of English and Colonial liberal governance which they intended to restore (minus the monarchy). It’s standard originalist stuff for the Supreme Court to interpret the original Constitution and the Bill of Rights through the lens of English law. There’s a reason that Justice Scalia’s Heller decision depended, at its core, on a discussion of Blackstone’s views on the right to bear arms, as well as those of other English commentators.

                Chief Justice Taft probably put it best: “The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.”

                I could string-cite cases along these lines (it really is basic, basic, basic doctrine), but you may profit more from the work of David Dunning and Justin Kruger.

              2. Kindly point out where the constitution authorizes impeachment of anyone outside of those categories I listed.

                Article I, Section 2: The House of Representatives … shall have the sole Power of Impeachment.

                Not, “The House of Representatives can impeach the following categories of people.”

    2. Occam’s Razor would strongly support the notion that once the subject of the impeachment has left office AS REQUIRED, the trial becomes moot.

      I see the “well, they could get away by resigning” argument all over the place but that is simple irrelevant at this point. Trump’s term of office came to an end and there is no logical argument for having the Senate try a private citizen and, realistically, that concept is barred by the bill of attainder clause.

      Trump the private citizen is subject to prosecution by DOJ if the claim is some variation on sedition or by DC if the charge is inciting a riot. It is this fact that exposes the hypocrisy of this sham impeachment. If Democrats really want to punish Trump and they truly believe he has committed a crime, they would not bother with a Senate action that is highly dubious from a constitutional basis and virtually assured of failure.

      It is the reality that they know their charges would not stand up to scrutiny in court (although, probably, any DC decision would have to be appealed to achieve a legitimate decision) that cause them to pursue a pointless course – with a majority vote, they can pretend they were right despite their failure to convict. Under a normal judicial process, they would have to face an acquitted Trump in the future

      1. Your first paragraph would make a ton of sense… if the only possible remedy at impeachment were removal. But it’s not. The Constitution itself contemplates disqualification as another remedy. Nothing is “moot” so long as a misdemeanant is otherwise eligible to seek an “office of honor, trust or profit under the United States.”

  3. A. The House impeachment is as partisan and weak as their first impeachment, and just as partisanly counter-productive in making Trump into a martyr.

    B. While I think the argument for allowing the impeachment trial is the better one, and Mike Lee’s argument is surprisingly contorted, the constant “Mike Lee leaves out…” is partisan too, and leads me to say that what Prof. Brian Kalt leaves out is that the Senate vote lost precisely because the Senators thought they lacked jurisdiction. This article pushes its partisanship as hard as Mike Lee did.

    1. When Mike Lee leaves out important facts that weaken his argument; how would you suggest that others point this out? My take was that: Simply pointing out weaknesses in the other side’s argument is the polar opposite of “partisan.” What makes it so partisan in your eyes? I’m genuinely not seeing it.

      1. It’s the language. Only time I ever see that kind of language is in semi-professional journals where the intent is to shoot the messenger AND the message.

        Instead of “Lee also leaves out”, drop the name. Drop the “leaves out”. Both are technically accurate, but not necessary to show what was left out. They are only in there to rub salt in the wound.

        1. Just to back up santamonica811 here, this was a specific response to Lee’s op-ed, so I did it in a point by point manner. I have written a lot of things about late impeachment in a lot of places, and this was just one of them. I’ve been writing about it for 20 years, and my position has been consistent. There are reasonable arguments against late impeachability; Lee’s aren’t them. (As for being partisan, I’m not saying anything here about whether Trump *should* be convicted, only that the Senate has jurisdiction.)

    2. the Senate vote lost precisely because the Senators thought they lacked jurisdiction.

      Most senators thought they had jurisdiction. A minority of senators disagreed.

  4. If that impeachment were partisan and weak, right-wingers would love it.

  5. I can’t wait for Mitch McConnell and Lindsey Graham’s article on this to come out, a brief excerpt here:

    “A Republican President recently out of office cannot be impeached by a Democratic Congress because the people should decide if the President is fit to serve again. Of course, if it’s a Democratic President recently out of office impeached by a Republican Congress that’s totes different, full steam ahead, because the people decided to have a Republican Congress! If we make a different rule soon, hold this against us!”

    1. QA,
      Who needs the articles. We need to skip the hot air, skip the show trial and if there is a compelling case, the DoJ should prosecute in an Art. III Court. It is that simple.

  6. Let’s quote the entire sentence in the constitution: “Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed [ repeat: shall be removed] from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It is not concerned with impeachment except as a means of removing someone from office. The object is removal. Once that has been accomplished, the rest is irrelevant. Once the officer is no longer in office, the matter is moot.

    1. Well said. That’s what the language says, and history tells us that the founders had in mind.

    2. Article II, Section 4 is not the source of the impeachment power. Article I is. Article II, Section 4 simply sets forth the minimum punishment for impeachment/conviction.

      1. Doesn’t the more specific limit the more general? What successful impeachment has ever occurred that was not concerned with removal?

        1. Doesn’t the more specific limit the more general?

          If its language were that of limitation, perhaps. But it isn’t. Article II, Section 4 does not say “only” or words of that nature.

          What successful impeachment has ever occurred that was not concerned with removal?

          In the U.S., none until now. Removal is typically the major concern. In the UK, several. But given the tiny number of successful impeachments in the U.S., I don’t think “We haven’t done this before” is much of an argument. Also, why does it matter whether it was successful for the purpose of whether it’s permissible?

          1. Absolutely right. Consider a hypothetical provision in the immigration code: “Aliens shall be removed from the United States upon indictment for, and conviction of, insider trading charges.” Note that this sentence is structurally identical to article II, sec. 4.

            Nobody in their right mind would read that statute as somehow limiting the government’s power to try non-aliens for insider trading. It’s obvious that the authority for insider trading prosecutions comes from some other source—namely the Securities Exchange Act. This hypothetical immigration statute simply sets forth a mandatory penalty for convictions of aliens. We would know that because (a) that’s what the words say, (b) the statute would be passed against a historical background of prosecutions of non-aliens for insider trading, (c) there are other penalties for insider trading that are fully applicable to non-aliens, (d) good policy suggests that we discourage non-aliens from committing insider trading offenses, and (e) the placement in the immigration code suggests that this is a particular rule for aliens that is not intended to displace the more general rule as to other people.

            Same here. We know the sec. 4 is simply telling us about a mandatory penalty for certain classes of people (current officers) because (a) that’s what the words say, (b) the Constitution was ratified against a historical background of impeaching and disqualifying former officers and even non-officers, (c) article I expressly provides for a disqualification penalty, which is equally applicable to all persons, (d) good policy suggests that we discourage outgoing presidents from committing treason, bribery and other high crimes and misdemeanors, and (e) the placement of sec. 4 in article II (executive branch) suggests that it is meant as a specific rule for impeachments of members of the executive branch, and does not concern Congress’ authority under article I (legislative branch) to adopt and try articles of impeachment.

            1. Your analogy is deeply flawed by the distinction of the Senate’s highly limited and specific jurisdiction for trying anyone (i.e. only people who hold certain offices), the specific prohibition of trying private citizens (bills of attainder), and the fact that no one is claiming that the unconstitutional nature of the upcoming sham trial somehow limits the government’s power to try Trump under the appropriate jurisdiction.

              I do wonder if an acquittal by the Senate would create some kind of double jeopardy situation for Trump. If it did, it will be amusing to see how many leftists suddenly rethink it should be ignored as the product of an unconstitutional process.

              1. I do wonder if an acquittal by the Senate would create some kind of double jeopardy situation for Trump.

                No. To repeat my refrain: this has been yet another episode of Simple Answers to Stupid Questions. The constitution expressly forbids someone from being “twice put in jeopardy of life or limb.” It also expressly says that the only punishment for impeachment is removal and/or disqualification, not life or limb.

                1. Well, you need to rethink your refrain. The words life or limb are not interpreted strictly; they apply to any legal penalty. If the courts used your interpretation, double jeopardy would have no meaning except in capital offenses (we stopped whipping folks a long time ago and I don’t think we ever severed limbs).

                  So, your answer falls under the heading of stupid responses by people who are about 1/4 as smart as they think they are.

                  1. Corrupt former federal judge Alcee Hastings (D-FL) would love you, @RRDRRD. He trotted out a double jeopardy argument at his impeachment trial (because he had been acquitted in his criminal case), and it was rejected by a 92-1 vote. Or if judges are more your thing, the Judicial Conference of the United States had already referred him for impeachment after his criminal acquittal. Or if you prefer conservative legal legends, then-SG Bork wrote a definitive brief on the subject when VP Agnew was under investigation. There’s also a scholarly OLC opinion by now-Judge Randolph Moss concluding, *against the interests of the president he worked for*, that impeachment does not constitute “jeopardy”.

                    But hey, maybe 92 out of 93 senators and the Judicial Conference and Judge Moss and Judge Bork were all 1/4 was smart as they thought they were. Or maybe you’re 4x as smart as you think you are. Or not.

                    (By the way, on the substance, it’s right that “life or limb” is not to be taken literally. That phrase has traditionally been limited, though, to criminal punishments and civil remedies that are essentially punitive. Loss of a job qualification has never, to my knowledge, been treated as punishment for purposes of Double Jeopardy; a lawyer, for instance, can be disbarred for acquitted conduct. Also by the way, your hunch about Double Jeopardy is not crazy a priori. It just turns out to be wrong–or to be more precise, strongly against the weight of well-researched opinion. Randy Moss’s opinion and easily accessible and can tell you why. You shouldn’t be ashamed that a hunch turned out wrong, but you should know when to stop doubling and tripling and quadrupling down.)

                  2. The words life or limb are not interpreted strictly; they apply to any legal penalty.

                    Well, no, they don’t. You know how we know? Because the Constitution expressly provides for criminal prosecution after impeachment.

          2. The constitution is a grant of authority, not a limitation on authority. Congress can only act in conformity with the authority granted by the constitution. There are no provisions in the constitution that discuss impeachment in terms of process, voting requirements, who should preside, etc., except in the context of removing an official from office. Even Prof. Kalt in his law review article concedes art. II, sec. 4 has been limited to officials prescribed in that section. Similarly, it limits the purpose for which impeachment can be used. No where else in the constitution is there a discussion of the use of impeachment, and impeachment has not been used in any other context.

            1. The constitution is a grant of authority, not a limitation on authority.

              Right. And where is the authority to impeach granted? Not in Article II. It’s a legislative branch power, and is granted in Article I.

              1. Great. So where does the constitution point out how an impeachment for a purpose other than removal is to proceed? What vote is required? For what can you be impeached in that context? Can you impeach a sitting president without removing her and without having the chief justice preside?

  7. Instead of spending so much time on whether or not the Senate can try a former president on an impeachment, how about spending some time writing about the fact that the Senate has never convicted on a presidential impeachment.

    The odd strongly favor that this one ends with the record on presidential impeachments/convictions at 4/0.

  8. Seems like the rejoinder to Sen. Lee begs the question. The impeachment vote may have been January 13, but the charges were not read in the Senate until after Trump left office. My understanding is that the modern view is Trump was impeached on January 13, but the historical view is that Trump was impeached when the charges were read.

  9. This is daft. You need to impeach an office holder in order to bring certain charges which office holders would otherwise be immune to, for things done in the course of their duties as office holder.

    Trump is no longer President, and therefore doesn’t need to be impeached because he no longer has immunity; his acts of treason can simply be prosecuted as with any private citizen, because they were not part of his role as POTUS.

    If a sitting President ups and murders someone, they’re not immune. QED.

  10. impeachment being a political and not a criminal process, how would the question of the impeachability of a former official come before SCOTUS for decision? There’s no apparent avenue of appeal from a conviction on impeachment. If a convicted official was banned from future office but was elected or appointed nonetheless, maybe some kind of ultra vires challenge could asserted against any official action taken by such an official, but otherwise?

    1. Elsewhere I read (maybe Dershowitz) the supposition that in the extremely unlikely event of conviction, Trump would just file to be on the ballot at the state level until someone refused to do so – then he files suit against that state where the unconstitutionality of the Senate trial would be confirmed by a federal court.

      Beyond that, other scholars suggest that the founders did not intend the presidency to be considered an “office” under the disqualification clause ( it has something to do with the distinction between an “office of the US” versus an office “under the US” in the vernacular of the time). It seems a bit odd at first but note that the constitution does not preclude convicted felons from high office.

    2. How is this impeachment trial not a “bill of attainder?”

  11. Dave,
    So why are the D’s afraid to forego impeachment and just press for prosecution?

    1. The two are not mutually exclusive.

      1. Sure about that? If acquitted by the Senate, would he not have a double jeopardy case against further Federal prosecution?

        More to the point, since the Dems know they will not get a conviction in the Senate, why not go right to the regular legal system? The obvious answer is that they would lose unequivocally and an acquitted Trump would scare them to death.

        1. No, the Fifth Amendment’s Double Jeopardy Clause refers to criminal prosecutions. (No person shall “be subject for the same offense to be twice put in jeopardy of life or limb.”) That’s why Republicans were never concerned that their impeachment efforts against Bill Clinton risked Ken Starr’s ongoing criminal inquiry. And why Alcee Hastings could be impeached and removed as a judge even after he was acquitted at his criminal jury trial.

          This is basic stuff, and readers should adjust their priors regarding your thinking on impeachments accordingly.

          1. Well, as noted above, life and limb is very broadly interpreted as any criminal penalty, so it would still apply to impeachment.

            Your choice of the Hastings case… well, lets just say it does not help your case. As he was first tried in the regular judicial system, then impeached, the process by which he was impeached was not subject to judicial review. The Federal judge who presided over Hastings appeal bowed to the SCOTUS decision about process review but fiercely denounced the handling of the Hastings case saying that “Judge Hastings’ fundamental rights were violated” and noted that while the Senate convicted him, only a committee actually heard the case – and they voted 2 to 1 for acquittal.

            Moreover, the sequence here is reversed. No one is going to be prosecuting Trump before the show trial is over. If anyone tries to pursue Federal charges after that, those charges will be subject to judicial review and, as previously noted, would raise double jeopardy issues.

            1. The ordering of impeachment trial and criminal trial can’t matter. An acquittal in Forum A can prevent a trial in Forum B if and only if an acquittal in Forum B can prevent a trial in Forum A. Impeachments have to be “jeopardy” or “not jeopardy.”

              The question of whether the Senate can try an impeachment by committee is unrelated to whether impeachment is “jeopardy” under the Fifth Amendment. By the way, the Trial Committee consisted of 12 senators, not 3. The Committee’s report did not, so far as I can tell, contain a recommendation either way, but those 12 senators (Bingaman, Specter, Leahy, Durenberger, Pryor, Rudman, Bryan, Bond, Kerrey, Gorton, Lieberman, Burns) ultimately voted 7-5 for conviction. Proceedings are available at https://play.google.com/books/reader?id=6hMgOgtkKvQC&hl=en&pg=GBS.PP1.

              As to the rest, I stand by what I said in a different part of the thread about 92/93 senators, Robert Bork and the OLC agreeing on this. The OLC opinion is worth reading.

      2. Which should be obvious. Don’t we all remember an impeachment trial from January-February 1999 that took place while a criminal investigation was still pending? Equally obvious that criminal charges and impeachments serve overlapping but distinct purposes.

        1. That is a really poor attempt at misdirection. Clinton was impeached only on the grounds of obstruction of justice and lying under oath as related to Paula Jones/Monica Lewinsky. Moreover, the investigation into those matters was complete – not ongoing – with the release of the report that led to Clinton’s impeachment. Not sure if there were still ongoing investigations into Whitewater by then but that would not matter in terms of double jeopardy – completely different actions at different times.

          1. Nope. Ken Starr left after sending his big report to Congress but before his investigation was over. He was replaced by a fellow named Robert Ray who ultimately settled for a non-prosecution agreement with Clinton that involved Clinton accepting a suspension of his law license.

            Ray’s final report was published in March 2002 and makes quite clear that he thought he could get convictions against Clinton for perjury in the Jones case (not a charge in the impeachment trial), perjury before the grand jury (acquitted in the impeachment trial), and possibly obstruction of justice (also acquitted). His discussion of why he didn’t charge those offenses is somewhat defensive, and you can bet he would have grabbed onto the Double Jeopardy issue if he had had a colorable argument along those lines.

            (The March 2002 report is hard to find online but is available in an inconvenient format at https://www.govinfo.gov/app/details/GPO-ICREPORT-LEWINSKY. The Whitewater portion of the Starr/Ray investigation closed in September 20, 2000, and conceded that the Independent Counsel couldn’t make a case against either Clinton for anything related to Whitewater.)

  12. If the Senate votes to remove Trump, is he no longer ex-President?

    1. No, he may then be disqualified from holding any office of honor, trust or profit under the United States. See U.S. Const. art. I, sec. 3.

  13. Sen. Lee’s essay is no more persuasive than former Judge Luttig’s WaPo op-ed. Neither are serious efforts, because neither are remotely comprehensive.

    Prof. Bobbitt’s is a workmanlike piece of advocacy, which while still brief, is closer to comprehensive. But it, too, ignores altogether the “last-minute offender” problem. He, Sen. Lee, and Judge Wittig all would have us presume that the Founders intended very federal official to have a “get out of impeachment and disqualification free” card upon submitting their resignations. And no amount of argument about angels dancing on pin-heads, nor the distinction between “a President” who has been impeached and “the President’ who has been impeached, can overcome the ridiculousness of that presumption.

    If Lee, Luttig & Bobbitt are correct — and despite what I believe are shamefully substandard arguments by the first two, I respect all three of these lawyers — let’s let the SCOTUS tell us that, definitively and precedentially, when and if Trump brings a court challenge after conviction and disqualification. Viewed in the big picture, their arguments come down to saying Trump might have a good court case, but they do not remotely amount to a reason to cancel the pending Senate trial.

    Alas, because the House Democrats have, yet again, engaged in impeachment malpractice by failing to develop all of the factual bases which might actually convince the requisite 17 GOP senators — or more importantly, some substantial portion of the Trump voting constituency which still believes that Trump is factually innocent of any misconduct — conviction is still unlikely, and without that, disqualification impossible.

    1. I do not presume that the resignation “get out of jail free card” is a valid concern.

      It is sort of like the old “you can’t fire me, I quit” gag. I am not convinced that resignation once impeached has any validity and it certainly would not once the trial has started. There are already precedents for refusing to accept a resignation of a public official specifically to dismiss them and Peru (I know – not the same constitution) did exactly this to their president in 2000.

    2. Intended a last sentence but hit the button too soon – it would have said something to the effect that Trump did not resign but was -forced out by the end of his term – nothing he could control. A statute of limitations analogy would apply (but not precisely).

  14. *Erratum: That ought to have read, “that the Founders intended every federal official.” Apologies for the resulting confusion.

  15. Impeach George Washington and Thomas Jefferson because they owned slaves. Impeach Abraham Lincoln because he was a racist he led this country into a terrible civil war and did not do enough to protect African Americans. Impeach Ronald Reagan because he was also a racist.

    1. “We can’t convict a living ex-president who was impeached because then people might try to impeach dead people” was not the brilliant argument you thought it was.

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