Wallner: The problems with convicting Trump after he leaves office
James Wallner, DCNF
Democrats in the House of Representatives have impeached Donald Trump, making him the first president in U.S. history to be impeached twice. They accused the president of encouraging his supporters to attack Congress on Jan. 6. Ten congressional Republicans voted to impeach Trump this time around.
But the Senate is not likely to begin Trump’s impeachment trial before his term in office expires. This is because the Senate’s current procedural posture prevents it from starting the trial — absent the unanimous consent of all senators — until 1 p.m. on Jan. 20, one hour after President-Elect Joe Biden is sworn into office as the next president. GOP Majority Leader Mitch McConnell has reportedly informed Republican senators that the Senate will not begin the trial until Jan. 20 or 21.
A post-presidency impeachment trial would be unprecedented. On rare occasions, the Senate has held trials for impeached officials who were not in office at the time of the trial. However, senators did not vote to convict the impeached official in any of those trials. And in each of the trials, senators doubted whether they had jurisdiction to convict government officials after they left office.
The Constitution’s text, deliberations of the Federal Convention of 1787, ratifying debates and early practice surrounding impeachment suggests that the Senate cannot convict government officials impeached by the House if they are not in office at the time of the trial.
The House has “the sole Power of Impeachment” under the Constitution (Article I, section 2, clause 5). That means that its members must vote to initiate the impeachment process.
The Constitution gives the Senate “the sole Power to try all Impeachments” (Article I, section 3, clause 6). It stipulates that conviction requires an affirmative vote of two-thirds of senators present. In instances when senators vote to convict, Article I, section 3, clause 7 limits the Senate’s judgment to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.”
The Constitution also emphasizes that impeachment trials are distinct from criminal trials. It stipulates that impeached officials “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” The Constitution (Article III, section 2, clause 3) further distinguishes between impeachment trials and criminal trials by specifying “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”
The Constitution also defines who the House can impeach and, by extension, who the Senate can convict. Article II, section 4 stipulates, “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 Federal Convention of 1787
The delegates who crafted the Constitution during the Federal Convention of 1787 believed that Congress could only impeach government officials while they were in office. The delegates distinguished between government officials in their public capacity and individual citizens in their private capacity. And they understood impeachment as a mechanism to ensure that public officials behaved in-between elections.
For example, Benjamin Franklin observed in the convention debates that impeachment was the best way “to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and his honorable acquittal when he should be unjustly accused.” James Madison “thought it indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.” Madison argued that relying solely on elections to defend the community from these dangers was insufficient because they could arise in-between elections. That is, the president “might lose his capacity after his appointment.” He might also “pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Gouverneur Morris concisely captured Madison’s sentiment by describing impeachment as a way to punish the president “not as a man, but as an officer.” Consequently, punishment in cases of impeachment should be limited to “degradation from his office.”
The ratifying debates also suggest that Congress can only impeach government officials while they are in office. For example, “An American Citizen” noted that an impeached official “only may be disqualified from doing public mischief by losing his office, and his capacity to hold another.” “A Democratic Federalist” similarly observed that the Senate’s “whole judicial power lies within a narrow compass.” During an impeachment trial, the Senate “can take no cognizance of a private citizen and can only declare any dangerous public official no longer worthy to serve his country.” In the Pennsylvania ratifying convention, James Wilson — who also served as a delegate to the Federal Convention — asserted that “far from being above the laws,” the president “is amenable to them in his private character as a citizen, and in his public character by impeachment.”
The suggestion that former government officials are subject to impeachment when they are no longer in office collapses the distinction between public and private and leads to a universal impeachment power like the practice followed in Great Britain. Thomas Jefferson and James Madison both feared the consequences of reading a universal impeachment power into the Constitution. Writing to Madison in 1798, Jefferson worried that partisans would abuse a universal impeachment power to advance their narrow self-interest at the expense of the general good. “I see nothing in the mode of proceeding by impeachment,” Jefferson wrote, “but the most formidable weapon for the purpose of a dominant faction that ever was contrived.” He believed that an unqualified impeachment power “would be the most effectual [weapon] for getting rid of any man whom [partisans] consider as dangerous to their views.” Madison agreed, noting that giving Congress the power to impeach everyone — not just government officials — constituted “the most extravagant novelty.”
Jefferson and Madison were referring to the Senate’s first impeachment trial involving former Sen. William Blount. The proceedings suggest that the Senate cannot convict impeached officials if they are no longer in office at the time of the trial.
The House impeached Blount on July 7. And the Senate expelled the senator on July 8. The Senate also ordered Blount to appear for his impeachment trial on July 10 (Blount refused to appear). The House then insisted on proceeding with the impeachment. Consequently, much of the Senate’s deliberations during the subsequent trial centered on whether it had jurisdiction to hear the case in the first place.
In the Blount trial, one of the House managers clearly articulated the universal impeachment power view and acknowledged its roots in the English practice. “The question of impeachability is a question of discretion only, with the Commons and the Lords … all the King’s subjects are liable to be impeached by the Commons, and tried by the Lords, upon charges of high crimes and misdemeanors.” The House manager concluded, “I do not conceive it would have been sound policy to have laid any restriction as to persons upon the power of impeaching.”
But the Senate rejected this view after several weeks of debate. The trial concluded when senators agreed that the Senate “ought not to hold jurisdiction of the [Blount] impeachment” and voted to dismiss the articles of impeachment against Blount.
Luther Martin – another delegate to the Federal Convention of 1787 – clearly expressed the rationale underpinning the Senate’s decision in the Blount trial. Martin argued during the impeachment trial of Supreme Court Justice Samuel Chase that the Senate could not convict an impeached official if he was not in office at the time of the trial. He noted that the Constitution “clearly evinces, that no persons but those who hold offices are liable to impeachment. They are to lose their offices; and, having misbehaved themselves in such manner as to lose their offices, are, with propriety, to be rendered ineligible thereafter.” By extension, the Constitution did not subject government officials to impeachment for a period “further than the entire of their office.”
The Senate revisited whether former government officials could be convicted in an impeachment trial in the 1876 trial of former Secretary of War William W. Belknap. Belknap resigned his office after the House voted to impeach him but before the Senate trial began. As in the Blount trial, much of the Senate’s proceedings in Belknap’s trial centered on whether senators had jurisdiction to convict him when he was no longer a government official. While the Senate eventually voted to proceed with the trial, less than two-thirds of the senators present voted to do so, signaling that the Senate would acquit Belknap. And the senators who voted “not guilty” at the end of the trial based their decision on the Senate’s lack of jurisdiction in the case.
The Senate also held an impeachment trial for District Court Judge Charles W. English when he was no longer in office. The House voted to impeach English in 1926. Like Belknap, English subsequently resigned his office to avoid conviction in the Senate. But in a departure from the Belknap and Blount trials, the House requested that the Senate dismiss the articles of impeachment against English at the trial’s outset. While some senators believed that the prosecution should proceed, the Senate eventually voted 70 to 9 to dismiss the articles. Sen. William Edgar Borah, an Idaho Republican, summed up senators’ reason for dismissing the articles of impeachment: “Judge English has resigned, and that makes it impossible for us to remove him should we find him guilty.”
The Senate’s Rules
Advocates of a universal impeachment power argue that impeached officials who are no longer in office must be convicted to prevent them from holding office again in the future. Under the Constitution, senators may vote to bar impeached officials from holding future office. But they can do so only after they vote to remove the impeached official from office in the first place. The Senate’s Impeachment Rules preclude senators from voting to bar Trump once he is no longer removable from office. Specifically, Rule XXIII stipulates that at the end of a trial, “if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the Members present, a judgment of acquittal shall be entered.” The Senate’s rules do not allow for senators to vote separately to bar an impeached official who has been acquitted former from seeking office again in the future.
The Senate rules require it to hold a trial whenever the House sends it articles of impeachment. But the Constitution, delegates’ deliberations at the Federal Convention of 1787, ratifying debates and early practice all suggest that the Senate cannot convict an impeached official who is no longer in office. Consequently, the Senate cannot bar Trump from seeking office again in the future once the president’s term in office has expired.
The Constitution, ratifying debates and early practice of the impeachment process suggests that the Senate cannot convict Trump once he leaves office. If the House is limited, so is the Senate.
Dr. James Wallner is the Resident Senior Fellow for Governance at The R Street Institute.