Trump’s impeachment: is it constitutional for the Senate to convict a former president?

No one knows whether the Constitution allows the Senate to hold an impeachment trial against former President Donald Trump now that Trump is no longer in office.

To be sure, there is a wealth of legal knowledge on this issue. And, as a recent report from the non-partisan Congressional Research Service notes, “Most academics who have closely examined the matter have concluded that Congress has the power to extend the impeachment process to officials who are no longer in office. .

But while the Constitution mentions impeachment six times, the text of the document provides little clarity on whether the Senate’s power to try an indicted official ends when that official leaves office.

Whether Trump can still be convicted by the Senate is important because the Constitution allows an indicted official to be permanently disqualified from office. So if Trump can face an impeachment trial, the Senate could bar him from running for president again in 2024 – or any subsequent election.

And, although the weight of the stock market suggests that Trump is still vulnerable to impeachment, several Republican senators have already clung to the minority position – the view that former officials are immune from impeachment – as the reason. to vote against the conviction. As Senator Joni Ernst (R-IA) said of impeachment shortly before Trump left, “my general question is, why are we doing this when the president is away tomorrow?”

She added that she doesn’t “think” it would be constitutional to try Trump after he leaves.

Trump’s fate, in other words, could depend on the answers to two questions: whether Trump is still vulnerable to impeachment proceedings, and whether enough senators say he is now immune from such proceedings to prevent his conviction.

So is it constitutional to condemn Trump or not?

J. Michael Luttig, a former Conservative federal judge, recently laid out the constitutional case against the conviction of former public servants in the Washington Post.

The purpose of the impeachment power, says Judge Luttig, is “to remove a president or other ‘civil servant’ from office before he can further harm the nation from the office he then occupies.” Thus, once an official is no longer in his office, the case against him becomes moot – a private citizen cannot “further harm the nation” by using the powers of a federal official.

To support this argument, Luttig points to two constitutional provisions. One provides that the president “will be removed from office in the event of indictment and conviction for treason, corruption or other serious crimes and misdemeanors”, and another provides that “the judgment in the event of indictment shall not be ‘will not extend beyond the dismissal of his functions. , and disqualification to hold and enjoy any position. “

However, while the first of these provisions says that the president can be removed from office by indictment, and the second limits the consequences of a conviction by the Senate, none explicitly states that a former public servant can or cannot be condemned by the Senate. And, as noted above, Luttig’s opinion is the minority position among legal scholars.

Luttig suggests that the sole purpose of impeachment is to remove an official before the official can use his office to cause further harm. But the text of the second constitutional provision cited by Luttig suggests that impeachment may serve another purpose – to prevent a former public servant from regaining power and doing harm in the future.

As researchers Edwin Brown Firmage and R. Collin Mangrum wrote in a 1974 law review article, “the judgment of dismissal can extend to both removal from office and disqualification from any other position. . But, if the official leaves his current post, it “accomplishes only the first objective”.

A closely related problem is that, if former public servants are immune to the power of impeachment, someone could step down moments before the Senate votes to disqualify them. As law professor Brian C. Kalt wrote in a 2001 article, by strategically scheduling their resignations, a dismissed official “can ignore any attempt by Congress to disqualify.”

And there is also a strong historical argument for the removal of former public servants. The American power of impeachment, writes Laurence Tribe, professor of law at Harvard in an editorial in response to Luttig, “flows from the power of the British Parliament”. And the British Parliament had the power to remove former officials.

Indeed, while the drafters were in Philadelphia drafting the Constitution, Parliament was actively engaged in impeachment proceedings against Warren Hastings, a former governor general of India who had stepped down two years before his impeachment. “The impeachment of Hastings,” Tribe notes, “was mentioned several times during the Constitutional Convention in Philadelphia.”

Thus, the weight of scientific evidence strongly argues in favor of allowing the Senate to prosecute Trump. That said, the only clear US precedent for impeachment proceedings against a former official cuts both ways.

There is no clear US precedent for determining whether a former public servant can be disqualified from office

There is at least one historical example where Congress impeached, but did not convict, a former public servant. In 1876, the House approved, without objection, articles of impeachment against former Secretary of War William Belknap – Belknap was charged with accepting a bribe. Significantly, Belknap had resigned from his post while the House was still considering whether to remove him.

At the Belknap Senate trial, senators decided to resolve whether a former public servant was vulnerable to impeachment before voting on whether to convict Belknap, and the Senate voted 37 to 29 that the Former Secretary Belknap was “liable to face indictment for acts done as Secretary of War, despite his resignation from that post prior to his impeachment.”

It should be noted, however, that this 37-29 vote was below the two-thirds supermajority requirement needed to actually convict Belknap, and when the Senate voted on conviction, a critical bloc of senators who believed that his dismissal was unconstitutional was due to this. position. Although a majority of the Senate voted to convict the former secretary, no articles of impeachment crossed the two-thirds threshold, and several senators who voted for the acquittal have indicated that they had it. done because they believed former officials were immune from impeachment.

The Belknap precedent, in other words, provides fodder for both sides of the debate on whether Trump remains vulnerable to impeachment. Supporters of Trump’s impeachment can point out that a majority in the Senate voted to allow the impeachment process to move forward. Meanwhile, opponents of Trump’s impeachment can point to Belknap’s ultimate acquittal and the fact that a critical minority of senators believed Belknap’s impeachment was illegal.

The Senate can probably do whatever it wants in Trump’s second impeachment trial

In 1989, Congress impeached and convicted Judge Walter Nixon on two counts of false testimony before a grand jury (although Judge Nixon shares the same last name as another prominent figure in the history of impeachment, this is only a coincidence). Although the full Senate voted on whether to convict Nixon, the Senate appointed a committee of senators to “receive evidence and take testimony” in the Nixon impeachment trial. Nixon filed a lawsuit, claiming that by excluding certain senators from parts of his trial, the entire Senate violated its constitutional obligation to “try all indictments.”

Rather than resolve the issue of whether the Senate acted in accordance with the Constitution when it tried and convicted Nixon, the Supreme Court ruled that the judiciary need not be concerned with this issue in the first place. The Constitution provides that the House has “sole power” to remove an official and that the Senate has “sole power to judge all indictments.” As the Supreme Court explained in Nixon v. United States (1993), “the common sense of the word ‘unique’ is that only the Senate has the power to decide whether a person should be acquitted or sentenced.”

It is far from clear whether the current Supreme Court, which is both much more conservative and much less inclined to defer to elected officials than the college of judges who decided the Nixon case, would prolong Nixonthe reasoning behind Trump’s second indictment (although it is remarkable that Judge Clarence Thomas, the most conservative member of the current Court, and the only current member of the Court to have heard the Nixon case, joined the majority opinion in Nixon). But the implications of Nixon for Trump’s second impeachment are pretty obvious.

If “the Senate alone has the power to determine whether a person should be acquitted or convicted,” this strongly suggests that the Senate has the final say on whether a former elected official remains vulnerable to the power of impeachment. If the Senate chooses to convict Trump and disqualify him from office, the courts should defer to that judgment under Nixon.

Significantly, the Court’s opinion in Nixon does not mean that the legal arguments about whether or not Trump is vulnerable to impeachment are irrelevant. It just means that it is up to each senator to decide for themselves whether the Constitution allows Trump to be convicted and that the courts should not question those rulings.

And it also means that although a large number of senators argue in bad faith – and for purely partisan reasons – that condemning Trump is unconstitutional, the courts are powerless to overturn that finding in bad faith.