The Trial That Should Not Be

 

Last week, the House of Representatives voted to impeach Donald Trump for “incitement of insurrection,” stemming chiefly from his remarks before a large crowd near the White House on January 6. As I have previously written, serious questions still remain as to whether those charges are valid as a matter of fact and law. But assuming they are, the question is what comes next.

Press coverage is mostly limited to tactical and political issues. On the Democratic side, the chief concerns are the timing and form of the expected trial. Should Speaker Nancy Pelosi delay sending the article of impeachment to the Senate to give House leaders more time to gather evidence to strengthen their case? Or will that delay undercut the perceived public urgency of the trial? If there is an impeachment trial, will that slow down the Senate confirmations of top cabinet officials or the passage of Joe Biden’s legislative agenda? On the Republican side, the question arises of whether individual senators should break ranks with Trump and convict him, even if most Republican voters are as strongly opposed to conviction as Democratic voters are in favor of it.

In an important sense, these questions put the cart before the horse. First, we must ask whether the Senate even has the power to try this impeachment once the president is out of office. As a textual matter, the answer is no. There are two relevant provisions in the Constitution: Article I, Section 3, and Article II, Section 4. Article I, Section 3, gives the sole power of impeachment to the Senate. First, a simple declarative sentence provides that “When the President of the United States is tried, the Chief Justice shall preside.” The key word is “the” as in “the President.” The word “the” is used instead of the word “a.” “The” has a definite reference to the president now sitting in office, which will be Joe Biden on January 20. Once Donald Trump is out of office, he cannot be tried under this provision.

We cannot avoid this simple conclusion by treating “the” as an indefinite article, thereby broadening the meaning of “the President of the United States” to include former presidents. “The” can only be used as an indefinite article when there is no direct individual antecedent, as with, for example, “the more the merrier.” Here, that is not the case. We cannot sensibly read the quoted sentence to say “When the current or former president of the United States is tried . . .”

Additionally, such a reading lies in tension with Article II, Section 4, which reads: “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.” This provision can apply only to a sitting president; it is not possible to remove a former president from office. However, this section is incomplete because it fails to identify what penalties are to be imposed should the president be impeached for some lesser offense.

That gap is filled partly by the language of Article I—“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.” Clearly, the intention of the Democrats is to use the impeachment proceedings to block Trump from running again for president. Although the Senate has wide discretion to impose sanctions in cases not involving presidential high crimes and misdemeanors, the power to fashion novel remedies, including disqualification, does not expand its jurisdiction to trying former presidents. Discretion under that section is limited to determining how lesser sanctions can be imposed in minor cases. Indeed, it may be the case that the upper bound on the punishment of presidents is limited by the language of Article II, Section 4.

One open question: what counts as a lesser sentence? Clearly, censure or a fine might work. But it is highly unlikely that some lesser sanction against a sitting president could be used to reduce the powers of that office. For example, no sanction could remove the sitting president as commander-in-chief of the armed forces, given that the vice president is constitutionally powerless to assume that position. It is not possible to leave a void over this essential executive function.

An Indefinite Cloud

The sanctions problem becomes more acute for trials of former presidents. There is no statute of limitations in trying a sitting federal official. But if we expand our conception of discretion to include federal officials no longer in office, this could allow irate Republicans to bring impeachment proceedings against Hillary Clinton for her conscious failure to use government servers during her term as secretary of state. Is that a desirable outcome? The sensible solution is that no former federal officer should remain under an indefinite impeachment cloud. Only ordinary criminal prosecutions, which are subject to statutes of limitations, may be brought—just as they can be brought against impeached presidents. In fact, Section 3 of Article 1 provides that after conviction, an impeached officer “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The only historical exception to the rule involves the highly unusual situation that arose when the Senate conducted an impeachment trial in 1876 of Secretary of War William Belknap for corruption and excessive expenditures while in office. But in that case, Belknap acted strategically to resign his office just as the articles of impeachment were before the House. It is a common principle of law that such anticircumvention activities should not be tolerated. But Trump’s situation is quite different. His term of office is over on January 20, so that the charge of opportunistic behavior is better lodged against the House of Representatives than against Trump.

If, however, the House presses its impeachment case against Trump, it’s necessary to ask how the Senate’s jurisdiction to hear the case will be handled at trial. The applicable rules governing the procedures in impeachment trials are silent as to whether any trial should be allowed to take place at all. The Senate’s rules state that in cases of presidential impeachment, the chief justice of the United States presides over the chamber instead of the president of the Senate, i.e., the vice president. Article V of the Senate rules holds that the chief justice “shall have power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.”

Presumably, the chief justice could issue an order stating that the Senate has no jurisdiction over a former president of the United States. Still, any such decision might not give him the last word, as Article VII of the Senate rules provides that on “all questions of evidence,” a single member of the Senate can challenge any determination, after which a formal vote must be taken, without debate, on the motion to override. Neither Senate Articles V nor VII deals explicitly with jurisdictional challenges, and it seems inconceivable that a decision of such magnitude would be decided by either the chief justice alone or the full Senate without debate. Therefore, at some point, someone will have to make an adjustment to the rules. But who and how?

Jurisdictional Thicket

These are uncharted waters. If the Senate decides not to hear this case, then there is no issue. But what if it decides to try? Who determines if that is constitutional? That decision cannot be challenged directly in any court, especially not in the Supreme Court. It seems implausible that the chief justice could first preside over an impeachment trial only to then oversee the case at the Supreme Court. But if disagreement over jurisdiction arises, any dissenting senators may exit the proceedings entirely, or sit only under protest. The former alternative is risky. Article I, Section 3, does not contain any quorum provisions for the trial of a president. Conviction is a sure thing if the only senators in the hall are Democrats, given that only two-thirds of the senators present are required to sustain a conviction.

In ordinary civil litigation, it is generally required that each state (and by federal rule, each federal district court) give “full faith and credit” to the valid judgments of its sister states. But that standard does not require any other court to enforce a judgment when the deciding court did not have personal jurisdiction. Hence, it seems highly probable that Trump could challenge any ban on his participation in future presidential elections in the federal courts if some election official seeks to keep his name off the ballot. His argument would be that this court could properly determine that the Senate did not have power to try the case. Do we need that litigation? Here, there are real payoffs to a faithful textualist approach. Trump will soon be out of office, and at that point, democratic politics, not Senate decrees, should determine whether he has a political future.

© 2021 by the Board of Trustees of Leland Stanford Junior University.

Published in Law, Politics
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  1. Manny Member
    Manny
    @Manny

    I can’t believe you wrote all this on such an academic question.  He was impeached. Conviction with him out of office is absurd. Let it stand at impeachment and move on. Anything more is vindictiveness. 

    • #1
  2. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    This is a fine textual analysis, especially the focus on the use of “the” as a definite article.

    Would this rule apply only to the President, or should it apply to the Vice President also?  Going further, does this analysis indicate that it is improper to impeach or convict other federal Officers after their term has expired?

    • #2
  3. Chris B Member
    Chris B
    @ChrisB

    Impeachment is a necessary process only because the President and Federal Judges are shielded from prosecution by their office. Once a person is no longer in office that office no longer grants them immunity.

    Once Trump leaves office, he is no longer subject to impeachment, but may be charged with crimes.

    The Democrats know they have nothing that would stand up in a criminal court, which is why they are so desperately trying to get Trump banned from holding office again through the political process of impeachment. They can’t do it under a legal framework.

    • #3
  4. drlorentz Member
    drlorentz
    @drlorentz

    Executive summary: It depends on the what the meaning of the word “the” is. (h/t) Bill Clinton

    Lawyers will be lawyers.

    • #4
  5. Steven Seward Member
    Steven Seward
    @StevenSeward

    Manny (View Comment):

    I can’t believe you wrote all this on such an academic question. He was impeached. Conviction with him out of office is absurd. Let it stand at impeachment and move on. Anything more is vindictiveness.

    My thoughts exactly.  Epstein uses a lot of scholarly and lawyerly talk to basically say “This is just nuts.”

    • #5
  6. Steven Seward Member
    Steven Seward
    @StevenSeward

    Jerry Giordano (Arizona Patrio… (View Comment):

    This is a fine textual analysis, especially the focus on the use of “the” as a definite article.

    Would this rule apply only to the President, or should it apply to the Vice President also? Going further, does this analysis indicate that it is improper to impeach or convict other federal Officers after their term has expired?

    Even better, can we impeach Presidents who are dead?  How about Franklin Roosevelt and Andrew Jackson?  Or guys who just ran for President and didn’t win, like Dennis Kookcinich and Lyndon Larouche.

    • #6
  7. Raxxalan Member
    Raxxalan
    @Raxxalan

    Steven Seward (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    This is a fine textual analysis, especially the focus on the use of “the” as a definite article.

    Would this rule apply only to the President, or should it apply to the Vice President also? Going further, does this analysis indicate that it is improper to impeach or convict other federal Officers after their term has expired?

    Even better, can we impeach Presidents who are dead? How about Franklin Roosevelt and Andrew Jackson? Or guys who just ran for President and didn’t win, like Dennis Kookcinich and Lyndon Larouche.

    Or just wait for a challenger to be nominated by the other party and pre-impeach them.  Since we have decided to dispense with that whole troublesome rule of law thing and the tired old constitution in favor of the Progressive “feels” why not go all the way.

    • #7
  8. Sisyphus Member
    Sisyphus
    @Sisyphus

    Chris B (View Comment):

    Impeachment is a necessary process only because the President and Federal Judges are shielded from prosecution by their office. Once a person is no longer in office that office no longer grants them immunity.

    Once Trump leaves office, he is no longer subject to impeachment, but may be charged with crimes.

    The Democrats know they have nothing that would stand up in a criminal court, which is why they are so desperately trying to get Trump banned from holding office again through the political process of impeachment. They can’t do it under a legal framework.

    Yes, but Schumer’s path to success will require him to find 16 Republican votes to convict on an impeachment made with no evidence considered. I suppose he hopes that the whole strike down everyone who ever supported Trump in any way shape or form vibe coming from AOC and BigTech and Big Media will rattle the sort who always use the right fork and extend their pinkies when they drink their tea. The corporate pets may be lured to sacrifice Trump by the kinds of companies like Deloitte that are busily purging employees not reliably on the Left. Or the VISA crowd, for that matter, denying services to candidates and their campaigns that don’t meet VISA’s purity standards. And there will no doubt be a lot of money on the table for the usual grifters who might suddenly discover new and convenient principles accompanied by ski chalets and Lolita Island Escapades.

    All the screws and wenches of statecraft will be applied. Welcome to the Swamp. Watch your step.

    • #8
  9. Matt Upton Lincoln
    Matt Upton
    @MattUpton

    Are there any other ways to bar a public official from running again for acts which are not criminal, but would likely be impeachable if time allowed for the trial? It seems like a no-man’s-land of opportunity for corrupt but not criminally prosecutable behavior. 

    I also profoundly disagree with this statement: 

     His term of office is over on January 20, so that the charge of opportunistic behavior is better lodged against the House of Representatives than against Trump.

    The charge of opportunistic behavior could equally be lodged against the President who engages in actions which violate his oath of office knowing that impeachment cannot be tried before his term expires. It also hardly seems like a slippery slope from trying a former president who’s articles of impeachment were drafted while he was in office to impeaching dead presidents. 

    • #9
  10. Raxxalan Member
    Raxxalan
    @Raxxalan

    Matt Upton (View Comment):

    Are there any other ways to bar a public official from running again for acts which are not criminal, but would likely be impeachable if time allowed for the trial? It seems like a no-man’s-land of opportunity for corrupt but not criminally prosecutable behavior.

    I also profoundly disagree with this statement:

    His term of office is over on January 20, so that the charge of opportunistic behavior is better lodged against the House of Representatives than against Trump.

    The charge of opportunistic behavior could equally be lodged against the President who engages in actions which violate his oath of office knowing that impeachment cannot be tried before his term expires. It also hardly seems like a slippery slope from trying a former president who’s articles of impeachment were drafted while he was in office to impeaching dead presidents.

    If he can’t be convicted of a crime in a court of law why should a political tribunal be allowed to strip him of his rights?   If the Republican party wants to bar him from running on their ticket why can’t they do that on their own without a quasi Judicial proceeding?  Why do we always need to have a solution which involves the government?  If he is a threat to democracy and has done wrong then either prove it in court or convince the American people.  I am getting tired of politicians make rules to protect themselves at the expense of other people’s rights.  I also don’t like the we have to violate the Constitution to save it argument.  

    • #10
  11. Matt Upton Lincoln
    Matt Upton
    @MattUpton

    If he can’t be convicted of a crime in a court of law why should a political tribunal be allowed to strip him of his rights?

    Because it isn’t a criminal court, and the limited punishments described in the Constitution pre-suppose this. Impeachment is a political process, not a judicial one. 

    If the Republican party wants to bar him from running on their ticket why can’t they do that on their own without a quasi Judicial proceeding? 

    The parties have very little control since they made primaries a democratic process. Besides, the point is disqualification from office if congress as a whole votes to convict, not the president’s party. 

    Why do we always need to have a solution which involves the government?

    Why do we need this impeachment power which the framers wrote into the Constitution? We are discussing a problem concerning an elected official. I thought we were arguing over whether impeachment should be able to move against someone who just left office for offenses committed while in office, not whether impeachment itself is a just power. 

    If he is a threat to democracy and has done wrong then either prove it in court or convince the American people. I am getting tired of politicians make rules to protect themselves at the expense of other people’s rights. I also don’t like the we have to violate the Constitution to save it argument.

    Trump was a politician who made rules, and the “right” being violated is his ability to become President of the United States again. Holding public office is (or at least should be) a privilege that can be revoked by procedures set in law if one does not hold his oath of office. I’m not arguing Trump’s offense is so extreme it warrants unconstitutional remedies, but rather the circumstances are a gray area not directly addressed by the text. 

    • #11
  12. Raxxalan Member
    Raxxalan
    @Raxxalan

    Matt Upton (View Comment):

    If he can’t be convicted of a crime in a court of law why should a political tribunal be allowed to strip him of his rights?

    Because it isn’t a criminal court, and the limited punishments described in the Constitution pre-suppose this. Impeachment is a political process, not a judicial one.

    If the Republican party wants to bar him from running on their ticket why can’t they do that on their own without a quasi Judicial proceeding?

    The parties have very little control since they made primaries a democratic process. Besides, the point is disqualification from office if congress as a whole votes to convict, not the president’s party.

    Why do we always need to have a solution which involves the government?

    Why do we need this impeachment power which the framers wrote into the Constitution? We are discussing a problem concerning an elected official. I thought we were arguing over whether impeachment should be able to move against someone who just left office for offenses committed while in office, not whether impeachment itself is a just power.

    If he is a threat to democracy and has done wrong then either prove it in court or convince the American people. I am getting tired of politicians make rules to protect themselves at the expense of other people’s rights. I also don’t like the we have to violate the Constitution to save it argument.

    Trump was a politician who made rules, and the “right” being violated is his ability to become President of the United States again. Holding public office is (or at least should be) a privilege that can be revoked by procedures set in law if one does not hold his oath of office. I’m not arguing Trump’s offense is so extreme it warrants unconstitutional remedies, but rather the circumstances are a gray area not directly addressed by the text.

    The constitution though doesn’t offer the remedy you suggest.  It simply allows the removal and barring of office of a current office holder.  It doesn’t allow the stripping of political rights from a citizen based on a political tribunal.  In fact since it makes bills of attainder explicitly illegal one could argue it doesn’t even contemplate the powers you are ascribing to it.   My point is the Political Class has decided they want to make an example of Trump not because of what he did but because he dared go against them.  They don’t have the power to do that and I don’t want to give it to them.  

    • #12
  13. Captain French Moderator
    Captain French
    @AlFrench

    An opposing view from law liberty.org.

    • #13
  14. Matt Upton Lincoln
    Matt Upton
    @MattUpton

    Raxxalan (View Comment):
    The constitution though doesn’t offer the remedy you suggest. It simply allows the removal and barring of office of a current office holder. It doesn’t allow the stripping of political rights from a citizen based on a political tribunal. In fact since it makes bills of attainder explicitly illegal one could argue it doesn’t even contemplate the powers you are ascribing to it. 

    I don’t think the constitutional case is as cut and dry as Dr. Epstein makes it out to be, as Captain French’s linked article brings to light by taking a more historical look at impeachment as it has been used and defined in our country. A narrowly textualist version of interpretation in this case seems thin because, again, we are discussing an edge case about violations which occur in office but, because of time constraints, cannot be tried before the end of term. 

    It is a huge leap that Congress could impeach anyone it wanted and bar from office because it tried a former president indicted during his term. Bills of attainder doesn’t apply in this case, because Congress is making no new law against Trump. It’s executing its impeachment powers. 

    My point is the Political Class has decided they want to make an example of Trump not because of what he did but because he dared go against them.

    If there is anything impeachment was meant to do, it would be for Congress to remove a President who sought to supplant state and congressional authority regarding his election. Disregard the 1/6 riot at the capital. Trump asking Pence to reject state electors in itself was an impeachable act. The President is not co-equal to Congress. Congress is the supreme governing body of the land, and ought to act more jealous of that power and responsibility. 

    • #14
  15. Raxxalan Member
    Raxxalan
    @Raxxalan

    Matt Upton (View Comment):

    Raxxalan (View Comment):
    The constitution though doesn’t offer the remedy you suggest. It simply allows the removal and barring of office of a current office holder. It doesn’t allow the stripping of political rights from a citizen based on a political tribunal. In fact since it makes bills of attainder explicitly illegal one could argue it doesn’t even contemplate the powers you are ascribing to it.

    I don’t think the constitutional case is as cut and dry as Dr. Epstein makes it out to be, as Captain French’s linked article brings to light by taking a more historical look at impeachment as it has been used and defined in our country. A narrowly textualist version of interpretation in this case seems thin because, again, we are discussing an edge case about violations which occur in office but, because of time constraints, cannot be tried before the end of term.

    It is a huge leap that Congress could impeach anyone it wanted and bar from office because it tried a former president indicted during his term. Bills of attainder doesn’t apply in this case, because Congress is making no new law against Trump. It’s executing its impeachment powers.

    My point is the Political Class has decided they want to make an example of Trump not because of what he did but because he dared go against them.

    If there is anything impeachment was meant to do, it would be for Congress to remove a President who sought to supplant state and congressional authority regarding his election. Disregard the 1/6 riot at the capital. Trump asking Pence to reject state electors in itself was an impeachable act. The President is not co-equal to Congress. Congress is the supreme governing body of the land, and ought to act more jealous of that power and responsibility.

    I didn’t find Captain’s French’s article as compelling as you did; however, that is a matter of interpretation. It does give some things to think about; however, mostly it is citing state examples.  The States are much less constrained than the federal government is or should be in our system. 

     They impeached him on inciting violence in the 1/6 incident not some other set of charges.  I am sorry I just see the possible abuses of power by Congress as much greater than the anything Trump has done warrants.  Also we know this will only be used against Republicans, so I see it as a dangerous precedent.

    • #15
  16. Steven Seward Member
    Steven Seward
    @StevenSeward

    Matt Upton (View Comment):

    I don’t think the constitutional case is as cut and dry as Dr. Epstein makes it out to be, as Captain French’s linked article brings to light by taking a more historical look at impeachment as it has been used and defined in our country.

    I read that article posted by Captain French, too.  It doesn’t cite any reason that the President can be impeached after leaving office.  It only cites a few States that have specifically written provisions in their state constitutions that allow them to impeach a governor after he has left office, especially one who  resigns to avoid impeachment.  The article even divorces these provisions in State Constitutions from the provision of impeachment in the U.S. Constitutions by saying “While the U.S. Constitution drew a different line, …”

    Their only suggestion that a U.S. President might be subject to impeachment after leaving office is this historical mind-reading exercise:

    “Provisions in the Virginia and Delaware state constitutions—particularly given the influence of Virginia politicians and experience—would have been known at the time of the drafting of the U.S. Constitution. This experience suggests that without an express limitation of impeachment to current office holders, the text of the U.S. Constitution would not have been read to limit impeachment to the period of a president’s term of office.”

    • #16
  17. Steven Seward Member
    Steven Seward
    @StevenSeward

    Steven Seward (View Comment):

    Their only suggestion that a U.S. President might be subject to impeachment after leaving office is this historical mind-reading exercise:

    “Provisions in the Virginia and Delaware state constitutions—particularly given the influence of Virginia politicians and experience—would have been known at the time of the drafting of the U.S. Constitution. This experience suggests that without an express limitation of impeachment to current office holders, the text of the U.S. Constitution would not have been read to limit impeachment to the period of a president’s term of office.”

    I think I misinterpreted that line from the article.  I get confused with double negatives.  I think what it is actually saying is that the Founders explicitly did limit impeachment to a current office-holder, a conscious effort to make this different from the state constitutions of Virginia and Delaware.

    • #17
  18. MISTER BITCOIN Member
    MISTER BITCOIN
    @MISTERBITCOIN

    Impeachment ended when Nixon resigned.

     

    • #18
  19. RufusRJones Member
    RufusRJones
    @RufusRJones

    Raxxalan (View Comment):
    The constitution though doesn’t offer the remedy you suggest. It simply allows the removal and barring of office of a current office holder. It doesn’t allow the stripping of political rights from a citizen based on a political tribunal. In fact since it makes bills of attainder explicitly illegal one could argue it doesn’t even contemplate the powers you are ascribing to it. My point is the Political Class has decided they want to make an example of Trump not because of what he did but because he dared go against them. They don’t have the power to do that and I don’t want to give it to them.

    Excellent. 

    • #19