Tuesday, January 19, 2021

Impeachment Trial Anyway

President Trump has been impeached, again, but it appears that his Senate trial will not take place until he has left office in the ordinary course. That has caused some to question not only the wisdom of a Senate trial, but also its legality. So, the question presented is whether a trial in the Senate will be proper, and, if so, will it be in any way effective.

It shouldn’t be surprising that eminent legal scholars differ on this point. [1] The Constitution doesn’t seem to answer the question directly. But although the issue is challenging the best legal minds, your humble servant will take a stab at it, hopefully without too much hubris.

One thing we can get out of the way at the onset is that there is little likelihood that the Supreme Court will weigh in on the matter. In the 1990s one Walter L. Nixon, Jr., a former federal judge, asked the Court to rule that the Senate trial that removed him from office was conducted improperly. But the Court held that it is up to the Senate how it conducts impeachment trials, and that the federal courts have nothing to say about it. [2] And, as a practical matter, armed with that precedent, it is unlikely the Supreme Court will come within a hundred miles of this case.

What’s more, impeachment proceedings against a person who has left office has historical precedent. In 1876, William Belknap, President Grant’s notoriously corrupt Secretary of War, raced to the White House to hand Grant his resignation just minutes before the House of Representatives was scheduled to vote on impeachment articles against him. The House went ahead anyway, and, after the articles were sent over, so did the Senate, which decided it retained jurisdiction over the matter. As it turned out, the Senate didn’t convict him, but it wasn’t because Belknap had already resigned. [3]

Now the immediate effect of conviction on an impeachment is removal from office. [4] That seems pointless at this juncture, that is, since the Senate isn’t going to try him before Joe Biden takes office. But there is one other thing that can happen. Trump can also be disqualified from holding any federal office in the future. That’s not automatic. But if the Senate decides to go that route, it can, after conviction, take a further vote on the question. And while conviction itself requires a two-thirds supermajority, a judgment that Trump is disqualified from holding further office would require only a simple majority.

So, there is a practical reason to go ahead with a Senate trial on Trump’s impeachment, and there doesn’t appear to be a prohibition against doing so. And inciting a mob to riot at the Capitol seems a sound reason to keep him away from governmental power in the future.