Constitution does not ban Trump’s impeachment trial

Forty-five Republican senators voted in favor of Senator Rand Paul’s motion challenging the Senate’s jurisdiction to try Trump. But research on this issue has matured considerably since that vote and revealed the serious weakness of Mr. Paul’s analysis.

The strongest argument against the power of the Senate to try a former officer rests on Article I, Section 4 of the Constitution, which reads: “The President, Vice President and all civilian officials of the United States shall be dismissed from their duties in the event of indictment for, and conviction, treason, corruption or other serious crimes and offenses. Opponents of the trial argue that since this provision requires revocation and only incumbent officers can be removed, it follows that only incumbent officers can be indicted and tried.

But the layout cuts against their interpretation. It simply establishes what criminal law calls a “mandatory minimum” sentence: if a job holder is convicted by a two-thirds vote of the Senate, he is removed from office by law.

If dismissal was the only sanction that could be imposed, the argument against the judgment of former officers would be compelling. But this is not the case. Article I, section 3, authorizes the Senate to impose an optional penalty in the event of conviction: “prohibition to hold and enjoy any office of honor, confidence or profit in the United States”.

This punishment can only be inflicted on former officers. Indeed, Article II, section 4, is self-executing: a convicted official is automatically dismissed at the time of conviction. The Senate’s formal procedures for impeachment trials recognize this constitutional reality, noting that a two-thirds vote to convict “operates automatically and instantly to separate the person charged from office.” The Senate can then, at its discretion, proceed to a separate vote to impose, by a simple majority, “the additional consequences provided for by the Constitution in the case of a civil servant indicted and sentenced, namely: permanent disqualification elected or appointed functions ”.

Thus, a disqualification vote by the Senate can only be taken after the officer has been impeached and is by definition a former officer. Given that the Constitution allows the Senate to impose the penalty of permanent disqualification only on former office holders, it flies in the face of logic to suggest that the Senate is prohibited from trying and convicting former office holders. charge.

Some have argued in the alternative that the trial is unconstitutional because Chief Justice John Roberts will not be presiding. (Majority Leader Chuck Schumer said the Chief Justice was questioned and refused.) Article I, Section 3 states that “when the President of the United States is tried, the Chief Justice presides over “.

This argument is wrong, and the definitive article explains why: Mr. Trump is no longer the President. Article 3 excludes the vice-president from the trial of a sitting president because she would take office if convicted. No such consideration applies to Kamala Harris. It appears Ms Harris has also declined to chair, so the role will be taken by Pro Tem President Patrick Leahy. But she could unilaterally claim that prerogative at any time, including a tie vote on procedural motions or the decision to disqualify Mr. Trump.

Senators who supported Mr. Paul’s motion should reconsider their views and judge the former president’s misconduct on the merits.

Mr. Cooper is a founding member and president of Cooper & Kirk PLLC.