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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.
Published in Law
Yeah, mine too. But who cares what we think about it?
Former Fourth Circuit Judge Michael Luttig, a brilliant jurist who was passed over twice by Bush II for SCOTUS, has this to say:
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.
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.
And now for something completely different, see:
Trump Impeachment Trial Can Be Held After He’s Out of Office
What about a former VP? Someone has promised to files articles of impeachment against “Beijing” Biden on the 21st. Why the heck not??
Hoyacon
Former Fourth Circuit Judge Michael Luttig, a brilliant jurist who was passed over twice by Bush II for SCOTUS, has this to say:
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).
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?
Ahhh. Bless your heart. You think the Constitution has anything to do with our politics right now.
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
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?
From a book, written as a “juvenile”, 70 years ago:
From Heinlein’s outline notes for the book:
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.
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.
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.
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.
Yet another argument to just vote in the senate and put him out now.
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 : 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).
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.”
@Skyler wrote:
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.
Yeah, unfortunately for you, there’s this little thing called a trial in the Senate that would probably drag on too long.
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.
Because he’s a Democrat for gosh sakes. What a silly question.
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?
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.
Nor for some time. Was it in 2010 Nancy Pelosi didn’t think she needed Constitutional authority to pass Obamacare?
The internet needs a sarcasm font so people get the joke.
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.
You can still go there.
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.
No it won’t. The media won’t allow it in the public eye.