For this week’s newsletter I had the radical idea to review what the U.S. Constitution said about impeachment. Fortunately, the word is mentioned six times only. Let’s have a look and consider how they apply to the second Trump impeachment. I will try my best to be unbiassed.
Before getting started, for the benefit of the non-American subscribers, the question at hand is whether the process of punishment phase after an impeachment can apply to an ex-president. The dilemma is the Constitution does not say one way or the other.
Following are the six mentions and my brief interpretation about their applicability to the second impeachment of Donald Trump. I put them roughly in order of their significance to the constitutional issues raised.
“The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.” – Article 1, Section 2
Nobody is seriously debating that the House of Representatives impeached Donald Trump or their prerogative to do so, while still in office, with 14 days to go.
“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” – Article 2, Section 2
The quotation above is self-explanatory. I’ve heard some people wonder why Trump didn’t pardon himself, while still president, to get out of the impeachment. The answer is he could not. Even if a self-pardon were deemed constitutional, which has never happened, it would not be a “get out of impeachment free” card. It would apply only to the federal criminal courts, as I understand it.
“The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” – Article 2, Section 2
This one also does not appear to be pertinent to the case at hand as the case was impeachment. Since the Senate hears impeachment cases, it is only logical they would happen in the Senate chamber.
“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.” – Article 1, Section 3
This one conveys the necessary 2/3 vote needed for conviction. This high bar may explain why no president in US history has been removed from office, although Andrew Johnson came within one vote of removal. Nobody disputes the 2/3 rule.
What I find more relevant is the question of why the Chief Justice of the Supreme Court did not preside over the case. He did with both the Clinton and first Trump impeachment. In this case, I assume he deemed it optional since a sitting president was not on trial. Instead, Patrick Leahy, president pro tempore presided. What is that position, you may ask? It should not be confused with the Senate majority leader, currently Chuck Schumer. I don’t want to get off-topic, but, briefly, it is a fill-in for the vice president, who officially presides over the Senate. The senator in this position is officially the second highest ranking member of the Senate, the vice president being first, although, in my opinion, it is mostly a ceremonial title.
“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.” – Article 2, Section 4
This is an important one. Trump’s side argued the trial was illegitimate because Trump was not the President at the time of the trial. I am sure they would also say and did say the trial was much ado about nothing because Trump could not be removed from office because he was no longer in office.
I will not get into what is are “high Crimes and Misdemeanors,” as I am limiting this newsletter to just the issue of whether the trial itself was legitimate.
“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.” – Article 1, Section 3
This one is also a biggie. It says judgement shall not extend further than removal from office and disqualification from holding a future office. The side of the prosecution argued they were not asking for removal, because he was already removed, but from not holding future office. Given that the 2/3 majority was not reached, there is nothing to stop Trump from running for president again in 2024.
The big picture is that neither side disputes that the Constitution does not say either way whether an ex-president, who was impeached as president, can be tried by the Senate. This bears repeating – it just does not say.
If you go by the letter of the Constitution, then it would seem Article 2, Section 4 does not allow for an ex-president to be tried.
However, Article 1, Section 3 shows that disqualification from future office is a punishment that could be applied to the situation at hand. Nobody argues Trump was impeached while president, twice.
I do not know how relevant this is, but the Senate did not get the articles of impeachment until after January 20th, when Trump was no longer in office. Had they got them before the 20th, I think the unconstitutionality argument would not have held as much water.
The whole thing seems to pit one clause against the other. Some might argue it pits the letter of the Constitution against the spirit of it. I think it is worth noting that in legal grey areas, the accused usually gets the benefit of the doubt in criminal trials. Then again, this was not a conventional criminal trial but one that has occurred only four times now in US history with little rules or precedent to fall back on.
I think I will close on that note. Let the record show I never expressed a firm opinion either way on what was the right way to vote. What I do hope is the public has at least learned a thing or two about the constitution and that is why I wrote this newsletter.