BY: Jack Little
Jack Little is a junior in the School of Foreign Service studying international politics, philosophy, and Spanish. He is currently a line editor for the Georgetown University Undergraduate Law Review.
On February 13, former President Trump made history by becoming the first president to be acquitted during their Senate impeachment trial after already having left office.[1] Notably, even the Republicans who voted to acquit seemingly accused him of having committed impeachable offenses. Minority Leader McConnell said, “There is no question – none – that President Trump is practically and morally responsible for provoking” the riots at the Capitol.[2] However, McConnell argued, the Senate cannot impeach a president who has already left office, and therefore “President Trump is constitutionally not eligible for conviction.”[3] These strained arguments, aimed at simultaneously appeasing Trump supporters while steering the Republican party away from Trump, do not hold up to muster.[4] Not only is there precedent for late impeachment, there are also practical considerations that clearly demonstrate the constitutionality of impeaching and convicting presidents after they have left office.
The trial of Secretary of War William Belknap in 1876 established the precedent for late impeachment. Belknap, who had been accused of corruptly receiving bribes, resigned before he could be impeached, but the House decided to impeach him nonetheless.[5] During his Senate trial, Belknap’s counsel argued, as did Trump’s, that because he was now a private citizen, he was no longer subject to impeachment; it was unconstitutional for the Senate to proceed. The Senate debated this argument and found that he was “amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.”[6] Although he was ultimately acquitted, as only a majority and not two thirds of Senators voted to convict, this case established a precedent for acknowledging the constitutionality of late impeachment.
Precedent is an incredibly important tool for determining whether a branch of government’s actions are constitutional. Indeed, the Supreme Court has ruled that “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.”[7] Thus, Congress, whose actions are rarely the subject of judicial review, must turn to precedent when deciding whether late impeachment is constitutional, and the only precedent for late impeachment prior to Trump’s second impeachment is that of the Belknap case.[8]
The House impeachment managers succinctly laid out the practical reason for why late impeachment must be constitutional in their “January exception” argument. According to Representative David Cicilline, if late impeachment were unconstitutional, it would allow that “our most powerful officials can commit the most terrible abuses and then resign, leave office, and suddenly claim that they are just a private citizen who can’t be held accountable at all.”[9] In other words, any impeachable offense committed by a president could go unpunished if they occurred near the end of their term or if they resigned soon after. Trump’s lawyer Bruce Castor responded that there could be no January exception because if a president did in fact commit impeachable offenses, they could simply be charged criminally after leaving office; they would not actually go unpunished.[10] Castor’s argument implies that impeachment is a criminal process, one in which all charges must be spelled out in the criminal code, but this is not the case. According to a House guide on impeachment, “Less than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute.”[11] Since most impeachments have not referred to specific criminal offenses, there might not be any remedy to a president’s impeachable conduct other than their late impeachment if they resign or their term expires before the Senate can try them.
Castor’s argument also implies that the sole purpose of impeachment is removal from office, which ignores a significant component of impeachment: the ability to disqualify a president from future public office if they are convicted. If impeachment were solely a process of removal, why would the framers include in the Constitution the Removal and Disqualification clause?[12] This clause demonstrates an additional purpose to impeachment other than the mere removal from office. In many cases, those who are convicted in the Senate or leave office before being convicted cannot realistically win a future election and are unlikely to be appointed to a public office anyways.[13] The law does not guarantee their disqualification from future office, however, so it is important that Congress retains its constitutional ability to disqualify former presidents from office who have been convicted by the Senate, even when they leave office before their trials.
For their part, Trump’s attorneys made other arguments in his defense. First, they attacked the impeachment procedure for denying Trump due process. Attorney David Schoen criticized the House’s “snap impeachment” as too hastily conducted.[14] He also criticized “the denial of any opportunity ever to test the integrity of the evidence offered against Donald J. Trump in a proceeding seeking to bar him.”[15] Here, he criticizes the Senate impeachment trial for not allowing further scrutiny of the evidence presented against Trump, even though the leaders of both parties agreed to the trial’s rules at its outset.[16] This faulty process, he says, shows that the underlying reason for Trump’s impeachment is actually “political gain.”[17]
Second, Trump’s defense team argued his speech on January 6 was “constitutionally protected political speech.”[18] Because political speech “is the kind of activity to which the First Amendment offers its strongest protection,” Trump must be acquitted, argued Attorney Michael van der Veen.[19] Otherwise, Castor warned, “This Chamber and the Chamber across the way will change [majorities] one day, and partisan impeachments will become commonplace.”[20]
However, these two arguments should be set aside as secondary to the constitutionality argument because so many Republican Senators justified their votes to acquit with the latter argument. For example, along with Senator McConnell, the entire Senate GOP leadership team—Whip John Thune, Republican Conference Chairman John Barasso, Republican Policy Committee Chairman Roy Blunt, Vice Chair of the Republican Conference Joni Ernst, and Republican Senatorial Committee Chairman Rick Scott—relied on the constitutionality argument to justify voting not guilty.[21] The Senate Republican conference’s reliance on the constitutionality argument is not surprising, since it allowed them to avoid offending Trump’s political base and also not endorse his actions, but it clearly shows which argument they view as more important.[22]
Given the Belknap precedent and these practical considerations, the Constitution clearly permits the impeachment of a president after he or she has left office. Rather than out of any serious concern for the Constitution, most Republican Senators unfortunately chose to hide behind it for the purposes of political expediency.
[1] Nicholas Fandos, Trump Acquitted of Inciting Insurrection, Even as Bipartisan Majority Votes ‘Guilty’, N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/2021/02/13/us/politics/trump-impeachment.html.
[2] 167 Cong. Rec. S28,735 (daily ed. Feb. 13, 2021)(statement of Sen. McConnell)
[3] Id.
[4] Carl Hulse & Nicholas Fandos, McConnell, Denouncing Trump After Voting to Acquit, Says His Hands Were Tied, N.Y. Times (Feb.13, 2021), https://www.nytimes.com/2021/02/13/us/mcconnell-trump-impeachment-acquittal.html?action=click&block=associated_collection_recirc&impression_id=c25f8861-6f11-11eb-82e7-c5beddebc667&index=1&pgtype=Article®ion=footer.
[5] Congressional Research Service, The Impeachment and Trial of a Former President 4 (2021).
[6] Id.
[7] U.S. v. Nixon, 418 U.S. 683, 703 (1974).
[8] Congressional Research Service, supra note 5.
[9] 167 Cong. Rec. S24,595 (daily ed. Feb. 9, 2021)(statement of Rep. Cicilline)
[10] 167 Cong. Rec. S24,601 (daily ed. Feb. 9, 2021)(statement of Counsel Castor)
[11] House Parliamentarian, Y 1.2:P 88/2, House Practice: A Guide to the Rules, Precedents and Procedures of the House 612 (2017).
[12] U.S. Const. art. I, § 3, cl. 7.
[13] Brian C. Kalt, The Constitutional Case for the Impeachability for Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Texas Review of Law & Politics 13, 126 (2001).
[14] 167 Cong. Rec. S27,669 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)
[15] Id.
[16] Brakkton Booker, Trump’s Legal Defense Team Concludes Case In Fraction Of Allotted Time, NPR (Feb. 12, 2021), https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/12/967460409/trumps-legal-defense-team-concludes-case-in-fraction-of-allotted-time.
[17] 167 Cong. Rec. S27,670 (daily ed. Feb. 12, 2021)(statement of Counsel Schoen)
[18] 167 Cong. Rec. S27,677 (daily ed. Feb. 12, 2021)(statement of Counsel van der Veen)
[19] Id.
[20] 167 Cong. Rec. S24,599 (daily ed. Feb. 19, 2021)(statement of Counsel Castor)
[21] Press Release, Senator John Thune, Thune Statement on Conclusion of Senate Impeachment Trial (Feb. 13, 2021), https://www.thune.senate.gov/public/index.cfm/press-releases?ID=879F5D24-FCCD-49F0-8E57-E7604722BC09; Press Release, Senator John Barrasso, Barrasso Statement on Impeachment Vote (Feb. 13, 2021), https://www.barrasso.senate.gov/public/index.cfm/news-releases?ID=136D20B1-C7B5-407A-B895-DCEADC562844; Press Release, Senator Roy Blunt, Blunt Statement On Vote To Acquit Former President Trump (Feb. 13, 2021), https://www.blunt.senate.gov/news/press-releases/blunt-statement-on-vote-to-acquit-former-president-trump; Press Release, Senator Joni Ernst, Ernst Statement on Conclusion of Impeachment Trial (Feb. 13, 2021), https://www.ernst.senate.gov/public/index.cfm/press-releases?ID=6640487D-7B01-4FE6-A413-5F1773F87B5B; Press Release, Senator Rick Scott, Sen. Rick Scott: It’s Time to Get Back to Work (Feb. 13, 2021), https://www.rickscott.senate.gov/sen-rick-scott-its-time-get-back-work.
[22] Hulse & Fandos, supra note 4.
