The Constitutional Argument Against Trump’s Senate Trial Is Convenient. Is It Also Wrong?
Forty-five Republican senators voted this week against trying Donald Trump on the charge that he incited the Capitol riot, maintaining that it is unconstitutional to consider the article of impeachment against him now that he is no longer president. That argument is very convenient for Republicans who do not want to alienate Trump’s supporters but also do not want to defend the conduct that led to his impeachment. But the fact that the argument is convenient does not necessarily mean it is wrong. While many prominent legal scholars think Trump’s trial is perfectly constitutional, the dissenters make some interesting points that are bound to come up again during the trial.
As Reason‘s Damon Root has noted, there is historical precedent for impeaching or trying federal officials after they leave office. William Blount was tried in 1799 after he had been impeached and expelled from the Senate, and former Secretary of War William Belknap was impeached in 1876, after he resigned. The House conducted an impeachment investigation of Vice President John C. Calhoun in 1827 based on his conduct as secretary of war, a position he no longer held. As a congressman in 1846, former President John Quincy Adams said he was “amenable to impeachment by this House for everything I did during the time I held any public office.”
Last week 150 legal scholars, including Federalist Society co-founder Steven Calabresi and several Volokh Conspiracy bloggers, signed a statement arguing that trying a former president is consistent with the text of the Constitution and the purposes of impeachment. Although Trump can no longer be “removed from Office,” they noted, he can still be disqualified from “hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States” if he is convicted by the Senate.
“The Constitution’s impeachment power has two aspects,” the statement says. “The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power.”
Limiting the option of disqualification in the way that critics of Trump’s trial suggest, the legal scholars warn, would create perverse incentives. “If an official could only be disqualified while he or she still held office,” they say, “then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks
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