The Senate is about to hear a second impeachment case against former President Trump, making Trump the only president in U.S. history to have his impeachment proposed twice by the House of Representatives. Because there is no precedent for this matter, legal scholars have expressed differing opinions on its constitutionality.
Senator Rand Paul (R-KY), who challenged Trump’s impeachment trial on the Senate floor earlier this week, noted that trying the former president would violate the U.S. Constitution. While the final vote was 55-45 and the trial will go forward, it also showed that nearly half of the senators believe the process is unconstitutional.
Many scholars who believe the trial is unconstitutional rely on an interpretation of Article II, Section 4 of the U.S. Constitution, which 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.”
According to their reading of the text, these scholars say impeachment is for incumbent officials, and since Trump is out of office, the Senate’s power to hold an impeachment trial, which expires at the end of his term on Jan. 20.
President Donald Trump on the South Lawn of the White House, Dec. 12, 2020.
Robert A. Levy, who is chairman of the board of directors of the Cato Institute, laid out this explanation in a blog post. If Trump were still in office, he said, he would be impeached under Article II. But because his term has ended, he would not be convicted even if he were impeached.
Robert Natelson, a senior fellow in constitutional law at the Independence Institute, taught that in his reading, the Constitution only implies, but does not state, that impeachment is against a sitting official.
But he also added that the Constitution generally interprets such “bills of attainders” as impeachment in a narrow sense.
This reading of the Constitution is shared by many Senate Republicans, who disagree with the trial. The trial is currently scheduled to have opening arguments the week of Feb. 8.
In the other camp, legal scholars and many Senate Democrats argue that former officials remain subject to the power of impeachment after leaving office because the Constitution allows for disqualification after removal from office.
These scholars rely on Article I, Section 3, which states, “The judgment of impeachment shall not extend further to removal from office, and to disqualification from holding and enjoying any office of honor, trust, or profit under the United States.”
A group of constitutional scholars who support the Senate trial, wrote in an open letter that the provisions of Article I, Section 3 illustrate that there are two dimensions to constitutional power.
The group argues, “The first is removal from office, which occurs automatically upon conviction of a sitting officer. The second is disqualification from future office, which occurs when the Senate deems it appropriate to disqualify the impeached person based on his or her conduct.”
Not all scholars, however, agree with the above view.
“Impeachment, as envisioned by this nation’s founding generation, is intended only as a procedure for removing an individual from public office, not for disqualifying him or her from future office.” said Juscelino F. Colares, a professor of law at Case Western Reserve University.
He continued, “It’s a basic concept that any adjudicating body must first have jurisdiction before it can hear a case.”
Colares’ reading of the Constitution was echoed by Robert Levy.
Robert Levy said, “We know that Trump was impeached, but not convicted. It seems to me that he may not be constitutionally convicted or disqualified now.”
Historical precedent
Legal scholars who support the trial argue that they believe impeachment trials of former officials are appropriate and supported by historical precedent.
University of Missouri law professor Frank Bowman and Michigan State University law professor Brian C. Kalt co-authored a Jan. 11 op-ed arguing that the “history, structure, rationale and application” of the Articles of Impeachment support trial of former presidents.
On three occasions in U.S. history, they say, former officials have been impeached and brought to trial in the Senate. One was Senator William Blount, whom the Senate ultimately determined could not be impeached because he was not an “officer” as defined by the Constitution. Another was federal judge George English, whose trial was dismissed after the House found it pointless to proceed with impeachment.
The third was William Belknap, President Ulysses S. Grant’s Secretary of War, whose impeachment trial sparked a debate on constitutionality in the Senate. Senators ultimately voted that it had jurisdiction over the former administration official. Belknap was ultimately found not guilty by a narrow margin.
Robert Nathanson previously taught constitutional law and is also the author of The Original Constitution: What It Actually Said and Meant. He adds that the argument is also supported by the precedent of the British Parliament, from which the American Founding Fathers drew inspiration.
He said, “The meaning of the word impeachment is defined by the understanding at the Time the Constitution was written that the British Parliament and early state legislatures impeached people after they left office.”
However, both Giuseirino Colares, and Robert Levy argue that the Belknap case has not been tested by the courts and therefore cannot be designated as a legal precedent.
“We are now in new territory with the Constitution.” Corrales said.
Another area of concern for constitutional scholars is the decision by Chief Justice John Roberts (R-Ohio) not to preside over the impeachment trial and instead Senate President Pro Tempore Patrick Leahy (D-Vt.) will preside over the trial in his place.
Article I, Section 3, Clause 6 of the Constitution states, “When the President of the United States shall be tried, the Chief Justice shall preside.”
In an op-ed earlier this week, Sen. Rand Paul argued that an impeachment trial would be ineffective without the chief justice hearing it.
The Supreme Court did not respond to a request for comment.
Corrales speculated that Roberts’ decision is likely because the trial, which is being held against a sitting president, is no longer on the line.
The Democratic-controlled House of Representatives voted 232-197 on Jan. 13 to impeach Trump, accusing the president of inciting a “rebellion” that led to the Jan. 6 break-in of the U.S. Capitol.
The impeachment was completed in just a seven-hour session, criticized by Republicans for lack of due process.
Although Senate Majority Leader Chuck Schumer (D-N.Y.) is pushing hard for an impeachment trial, the likelihood of Trump being convicted is low because a two-thirds majority is needed for a conviction.
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