Impeachment of a Former President is Unconstitutional

 

As pointed out by Senator Tom Cotton, impeachment and conviction of a former President is not allowed by the impeachment provisions of the Constitution which provide in so many words that upon a conviction in the Senate the President shall be removed from office.

That is pretty obvious, which of course means that the Democrats and the DemMedia will either ignore the point or ridicule the argument.

Here is a constitutional issue that is all pertinent to the travesty foisted upon the country by Pelosi et al: the trial and conviction of a former President Trump would be in violation of the constitutional prohibition of a Bill of Attainder.

For ease of reference, I will draw upon the definition of a Bill of Attainder from Wikipedia, “A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person’s civil rights…”

Pelosi has alleged incitement to riot. She aims to have Trump barred from holding office. The Supreme Court has already ruled in the term limit case that there is a constitutional right for a person to run for political office.

That sure adds up to an attainder in my book.

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  1. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Yeah, mine too.  But who cares what we think about it?

    • #1
  2. Hoyacon Member
    Hoyacon
    @Hoyacon

    Former Fourth Circuit Judge Michael Luttig, a brilliant jurist who was passed over twice by Bush II for SCOTUS,  has this to say:

    The sequencing of the House impeachment proceedings before Trump’s departure from office and the inauguration of the new president, followed by a Senate impeachment trial, perhaps months later, raises the question of whether a former president can be impeached after he leaves office.

    The Constitution itself answers this question clearly: No, he cannot be. Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.

    Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.

    So, one (very informed) man’s opinion.  But I don’t think that the issue is at all settled, and would probably require a court case.  It’s reasonable to assume there are those on the left who would argue differently.

    • #2
  3. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    Thanks for the post.  An interesting argument.  I’m inclined to agree with Sen. Cotton and Judge Luttig, though I’m willing to entertain counter-arguments.

    Here is a link to Sen. Cotton’s press release on the issue.

    • #3
  4. Hoyacon Member
    Hoyacon
    @Hoyacon

    And now for something completely different, see: 

    Trump Impeachment Trial Can Be Held After He’s Out of Office

    • #4
  5. DonG (2+2=5. Say it!) Coolidge
    DonG (2+2=5. Say it!)
    @DonG

    What about a former VP?  Someone has promised to files articles of impeachment against “Beijing” Biden on the 21st.   Why the heck not??

    • #5
  6. MarciN Member
    MarciN
    @MarciN

    Hoyacon

    Former Fourth Circuit Judge Michael Luttig, a brilliant jurist who was passed over twice by Bush II for SCOTUS, has this to say:

    The sequencing of the House impeachment proceedings before Trump’s departure from office and the inauguration of the new president, followed by a Senate impeachment trial, perhaps months later, raises the question of whether a former president can be impeached after he leaves office.

    The Constitution itself answers this question clearly: No, he cannot be. Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.

    Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.

    So, one (very informed) man’s opinion. But I don’t think that the issue is at all settled, and would probably require a court case. It’s reasonable to assume there are those on the left who would argue differently.

    Me (MarciN)

    I remember this issue coming up during the Clinton administration. The issues were (1) could he be charged or sued while he was president for things he may or may not have done before he was elected to office, to which the answer turned out to be no, and (2) could he be charged or sued after leaving office for things he had said or done while in office, to which the answer again turned out to be no. However, he could be sued or charged after he left office for actions he had taken before he was elected to office, in theory and with respect to Arkansas law because he was the governor there and with respect to the statute of limitations. He was ultimately disbarred from the Arkansas bar, and he made a deal with someone not to practice law to prevent his being prohibited from representing clients to the Supreme Court.

    Some of what we are witnessing today is, I think, payback for Republican activity during the Clinton administration. The Democrats love Clinton. As far as they are concerned, we done him wrong. :-) That said, there is a lot of belief that Trump has done some things that we know he did not do, but in the mass media trial he is going through right now, the public, his jury, believes the prosecutor (mass media).

    • #6
  7. Fritz Coolidge
    Fritz
    @Fritz

    As I understand it, this action is only because Biden will have been sworn into office, and that exposes him to the Constitution’s impeachment procedures for possible removal.

    Can “high crimes and misdemeanors” refer to actions taken earlier than the office held when impeached? Here the alleged actions were while he was Obama’s VP.

    What if he had done the same things but as a private citizen? Does impeachment’s “high crimes and misdemeanors” include such actions?

    • #7
  8. Boss Mongo Member
    Boss Mongo
    @BossMongo

    Lensman: Impeachment of a former President is unconstitutional

    Ahhh.  Bless your heart.  You think the Constitution has anything to do with our politics right now.

    • #8
  9. Hoyacon Member
    Hoyacon
    @Hoyacon

    Michael Luttig is an originalist/textualist, and sort of a “second” Scalia.  His argument, behind a WaPo paywall, is basically that the primary purpose of impeachment under the Constitution is removal.  We impeach you to get you outta there!  Query, if you’re already gone, what’s the point

    • #9
  10. Django Member
    Django
    @Django

    Jerry Giordano (Arizona Patrio… (View Comment):
    Jerry Giordano (Arizona Patrio…

    Thanks for the post. An interesting argument. I’m inclined to agree with Sen. Cotton and Judge Luttig, though I’m willing to entertain counter-arguments.

    Here is a link to Sen. Cotton’s press release on the issue.

    Two questions: Does it require a two-thirds vote to convict? Does Trump have the right to a defense, to call witnesses, to have some sort of discovery? 

    • #10
  11. Ontheleftcoast Member
    Ontheleftcoast
    @Ontheleftcoast

    Boss Mongo (View Comment):
    Ahhh. Bless your heart. You think the Constitution has anything to do with our politics right now.

    From a book, written as a “juvenile”, 70 years ago:

    The place had the odor of bureaucracy. They went down a long corridor past endless offices filled with clerks, desks, transtypers, filing machines, whirring card sorters. A lift bounced them to another level; they went on through more corridors and stopped at an office door. “Inside,” said the first guard. Don went in; the door slid shut behind him with the guards outside.

    “Sit down, Don.” It was the leader of the group of four, now in the uniform of security officer and seated at a horseshoe desk.

    Don said, “Where is Dr. Jefferson? What did you do with him?”

    “Sit down, I said.” Don did not move; the lieutenant went on, “Why make it hard for yourself? You know where you are; you know that I could have you restrained in any way that suited me—some of them quite unpleasant. Will you sit down, please, and save us both trouble?”

    Don sat down and immediately said, “I want to see a lawyer.”

    The lieutenant shook his head slowly, looking like a tired and gentle school teacher. “Young fellow, you’ve been reading too many romantic novels. Now if you had studied the dynamics of history instead, you would realize that the logic of legalism alternates with the logic of force in a pattern dependent on the characteristics of the culture. Each culture evokes its own basic logic. You follow me?”

    Don hesitated; the other went on, “No matter. The point is, your request for a lawyer comes about two hundred years too late to be meaningful. The verbalisms lag behind the facts. Nevertheless, you shall have a lawyer—or a lollipop, whichever you prefer, after I am through questioning you. If I were you, I’d take the lollipop. More nourishing.”

    “I won’t talk without a lawyer,” Don answered firmly.

    “No? I’m sorry. Don, in setting up your interview I budgeted eleven minutes for nonsense. You have used up four already—no; five. When the eleven minutes are gone and you find yourself spitting out teeth, remember that I bore you no malice.

    Heinlein, Robert A.. Between Planets (Heinlein’s Juveniles Book 5) . Baen Books. Kindle Edition.

    From Heinlein’s outline notes for the book:

    (a) the bill of rights is a damned good idea (b) absentee landlords are a bad idea (c) people can’t vote themselves something for nothing—and collect. (d) Terra is a small place; so is the solar system. Survivor types will meet the challenge by finding more land and bending it to their needs. (e) The folks who stay at home are nutty as hell if they think that their economic problems can be solved for any length of time by levying tribute on colonies. . . .

     

    • #11
  12. WI Con Member
    WI Con
    @WICon

    If they impeach Trump off this and the GOP retakes the House (with testicles intact), they should Obama for the incitement of killing police officers and again for Fast & Furious and again for the IRS scandal and again the Spying on the Trump Campaign.

    • #12
  13. Doctor Robert Member
    Doctor Robert
    @DoctorRobert

    To #5:  They SHOULD, but no two Repubs have enough stones to do such a thing.

     

    Here’s Article 2 section 4.

    “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.”

    The language is clear.  This is about getting rid of elected officials.  Two conclusions are clear too.

    1. Trump cannot be impeached after the fact, nor can anyone else.  One must be in office to be removed from office.
    2. Biden could be impeached as POTUS for his egregious crimes of corruption as VPOTUS, unless the statute of limitations has run out.
    • #13
  14. Eustace C. Scrubb Member
    Eustace C. Scrubb
    @EustaceCScrubb

    I hope the new congress spends as much time and political capital as possible on an impeachment trial. A little less time to do lasting damage.

    • #14
  15. Lensman Inactive
    Lensman
    @Lensman

    Since impeachment is not a criminal proceeding there is no statute of limitations.

    I don’t think Joe Buy Me will be in office in 2023 so that question is academic.

    • #15
  16. The (apathetic) King Prawn Inactive
    The (apathetic) King Prawn
    @TheKingPrawn

    Yet another argument to just vote in the senate and put him out now.

    • #16
  17. Skyler Coolidge
    Skyler
    @Skyler

    He’s not a former president.  He’s already been impeached (again).  The question is whether the Senate can convict an impeached president who is no longer president.

    Lensman (View Comment):

    Since impeachment is not a criminal proceeding there is no statute of limitations.

    @Lensman :  Where did you ever get that idea?  Statutes of limitations apply in tort law (which suits are heard in civil courts).

    But this isn’t even a court.  It’s a Senate vote for conviction after being impeached.  They decide what their rules are.  The only thing they can do if they convict is remove from office and prevent him from ever being appointed to an office.  The people will always be free to elect him (though they will try to claim that they can’t because the democratic communist party is devoid of truth).

    • #17
  18. Lensman Inactive
    Lensman
    @Lensman

    King Prawn wrote: “Yet another argument to just vote in the senate and put him out now.”

    I am going to assume you are referring to the Articles of Impeachment versus President Trump.

    The Senate is not currently in session and Sen. McConnell has announced that it will not reconvene until January 19th. Under Senate rules a trial in the Senate cannot completed in 24 hours and I suspect it cannot even be started in 24 hours.

    I guess you would be fine with the Senate violating its own rules. It reminds me the comment by Justice Clarence Thomas as to the disgraceful confirmation hearing conducted by then Senator Joe Biden, “a high tech lynching.”

    • #18
  19. Lensman Inactive
    Lensman
    @Lensman

    @Skyler wrote:

    He’s not a former president. He’s already been impeached (again). The question is whether the Senate can convict an impeached president who is no longer president.

    Lensman (View Comment):

    Since impeachment is not a criminal proceeding there is no statute of limitations.

    @Lensman : Where did you ever get that idea? Statutes of limitations apply in tort law (which suits are heard in civil courts).

    The point is that any trial in the Senate would be of a former president. The pertinent provision of the Constitution states that upon conviction in the Senate the president shall be removed from office. It goes on to provide for such conviction to disqualify that person from holding any federal office in the future. Therefore, it is fairly obvious that you cannot remove someone who is not holding any office and that the whole point of the trial is to obtain that removal. You are also ignoring the discussion in my post of the Bill of Attainder issue, which is pertinent to any trial in the Senate after January 20th.

    As to the comment about statutes of limitations, it was in reference to another member’s query about impeaching Joe Biden. I have no idea why you are bringing up a statute of limitations for tort cases. There are numerous other statutes of limitations besides those applicable to tort cases. The conduct of which Joe Biden would stand accused (for corruption including the Burisma scandal) all involve criminal conduct. Just as Hillary Clinton has the benefit of a statute of limitations for obstruction of justice for the numerous instances of her destroying evidence while Secretary of State and thereafter, Joe Biden is likely to similarly benefit.

    I am going to give you the benefit of the doubt that you never went to law school.

    • #19
  20. Hoyacon Member
    Hoyacon
    @Hoyacon

    The (apathetic) King Prawn (View Comment):
     

    Yet another argument to just vote in the senate and put him out now.

    Yeah, unfortunately for you, there’s this little thing called a trial in the Senate that would probably drag on too long.

     

    • #20
  21. Goldgeller Member
    Goldgeller
    @Goldgeller

    I don’t think Trump should be impeached because I don’t think his actions were impeachable. But I do believe that the Senate can impose sanctions on him even while he is out of office. I think there was a Ricochet or Law Talk podcast where John Yoo addressed the issue because a congressman brought up impeaching Obama. 

    Of course, this isn’t my area and I’m sure it’s probably complicated issue but that is my understanding. 

    • #21
  22. cdor Member
    cdor
    @cdor

    DonG (2+2=5. Say it!) (View Comment):

    What about a former VP? Someone has promised to files articles of impeachment against “Beijing” Biden on the 21st. Why the heck not??

    Because he’s a Democrat for gosh sakes. What a silly question.

    • #22
  23. cdor Member
    cdor
    @cdor

    Hoyacon (View Comment):

    Michael Luttig is an originalist/textualist, and sort of a “second” Scalia. His argument, behind a WaPo paywall, is basically that the primary purpose of impeachment under the Constitution is removal. We impeach you to get you outta there! Query, if you’re already gone, what’s the point

    Because we are hateful, vengeful, and really, really mean. Also, the coverage of our shenanigans gives cover to our senile President that we just elected (sort of) to office. Any other questions?

    • #23
  24. Skyler Coolidge
    Skyler
    @Skyler

    Lensman (View Comment):
    s to the comment about statutes of limitations, it was in reference to another member’s query about impeaching Joe Biden.

    That wasn’t clear in your comment.  You’re the one that said that there is no statute of limitations since it wasn’t a criminal case.  You didn’t provide context.

    As to your comment about law school, go to hell.

    • #24
  25. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Boss Mongo (View Comment):

    Lensman: Impeachment of a former President is unconstitutional

    Ahhh. Bless your heart. You think the Constitution has anything to do with our politics right now.

    Nor for some time. Was it in 2010 Nancy Pelosi didn’t think she needed Constitutional authority to pass Obamacare?

    • #25
  26. The (apathetic) King Prawn Inactive
    The (apathetic) King Prawn
    @TheKingPrawn

    Lensman (View Comment):

    King Prawn wrote: “Yet another argument to just vote in the senate and put him out now.”

    I am going to assume you are referring to the Articles of Impeachment versus President Trump.

    The Senate is not currently in session and Sen. McConnell has announced that it will not reconvene until January 19th. Under Senate rules a trial in the Senate cannot completed in 24 hours and I suspect it cannot even be started in 24 hours.

    I guess you would be fine with the Senate violating its own rules. It reminds me the comment by Justice Clarence Thomas as to the disgraceful confirmation hearing conducted by then Senator Joe Biden, “a high tech lynching.”

    The internet needs a sarcasm font so people get the joke. 

    • #26
  27. Lensman Inactive
    Lensman
    @Lensman

    Skyler (View Comment):

    Lensman (View Comment):
    s to the comment about statutes of limitations, it was in reference to another member’s query about impeaching Joe Biden.

    That wasn’t clear in your comment. You’re the one that said that there is no statute of limitations since it wasn’t a criminal case. You didn’t provide context.

    As to your comment about law school, go to hell.

    Look two comments before mine (@Doctor Robert) for context. For some reason I thought people would read comments in order.

    He wrote as if a statute of limitations could possibly bar an impeachment. It would be a bar for a prosecution for criminal conduct that was the basis for the impeachment. Such a prosecution can occur after an impeachment and conviction thereon. That is clearly spelled out in the Constitution. The point is pretty clear that impeachment proceedings are not criminal proceedings. 

    Tut, tut. Let’s have some manners. 

    If you want to get sloppy about statutes of limitations, mentioning only those for criminal and tort cases, then you need to develop a thicker skin. Usually that happened before the end of the first year of law school.

     

    • #27
  28. Skyler Coolidge
    Skyler
    @Skyler

    Lensman (View Comment):
    If you want to get sloppy about statutes of limitations, mentioning only those for criminal and tort cases, then you need to develop a thicker skin. Usually that happened before the end of the first year of law school.

    You can still go there.

    • #28
  29. Doctor Robert Member
    Doctor Robert
    @DoctorRobert

    There must be a law somewhere concerning corruption, under which Mr Beijing Biden could be tried for his well-documented corruption regarding Ukraine whle VPOTUS.

    My off-handed comment about SOL referred to that law.

    If there is no such law, if “I can’t tell you what corruption is but I know it when I see it”, then the Repubs in the House should file an article of impeachment against Mr Beijin Biden each and every week starting January 21 for his egregious and well-documented corruption regarding Ukraine while VPOTUS.  Make it a ritual.  Let it be a joke, that would keep it in the public eye.

    The third-most corrupt politician of our time is about to be installed in the White House and we have abundant evidence of his corruption.  Impeach!  Impeach! Demand that the Senate try him NOW, as POTUS, for the crimes he committed as VPOTUS.

    • #29
  30. Skyler Coolidge
    Skyler
    @Skyler

    Doctor Robert (View Comment):
    Let it be a joke, that would keep it in the public eye.

    No it won’t.  The media won’t allow it in the public eye.

    • #30