The upcoming Senate impeachment trial against former President Donald Trump is a first-of-its-kind proceeding and legal scholars have expressed mixed opinions about its constitutionality.
According to their reading of the text, these scholars say impeachment is for current officeholders, and since Trump had already left office, the Senate’s jurisdiction—or authority—to hold an impeachment trial expired on Jan. 20, when his term came to a close.
Professor Robert Natelson, senior fellow in constitutional jurisprudence at the Independence Institute, told The Epoch Times via email that in his reading of the text, the Constitution only implies, but does not state, that impeachment is for current officeholders.
But he also added, “the Constitution’s general policy against bills of attainder argues for a narrow interpretation of the impeachment power.” A bill of attainder is an act of a legislature declaring a person or a group of people guilty of a crime.
This reading of the Constitution is shared by many Senate Republicans who disagree on moving forward with the trial, which has opening arguments scheduled for the week of Feb. 8.
In the other camp, legal scholars and many Senate Democrats are arguing that former officeholders are still subject to the impeachment power after leaving office because the Constitution permits the punishment of disqualification after being removed.
“The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted,” the group contends.
“The impeachment power must be read so as to give full effect to both aspects of this power,” they added.
But not all scholars agree.
“Impeachment, as the founding generation of this country conceived it, was meant solely as a proceeding for removal of an individual from certain qualifying public offices, not for the purpose of disqualifying him or her from future office, or for any other reason,” Professor Juscelino F. Colares, a law professor at Case Western Reserve University, told The Epoch Times via email.
He continued, as a “potential punishment after trial” disqualification cannot work as an “express or implied grant of jurisdiction for such trial.”
“The notion that any adjudicatory body must first have jurisdiction before it can reach the merits is elementary, and U.S. Senators—lawyers in their own right or not—know better,” he said.
Colares’s reading of the Constitution is shared by Levy who argues, disqualification is a limited remedy for someone who has faced the “judgement in cases of impeachment.”
Historical ExamplesLegal scholars supporting the trial has further contended that their argument that impeachment trials of former officeholders are proper is supported by historical precedents.
Natelson, who previously taught constitutional law and is the author of “The Original Constitution: What It Actually Said and Meant,” added that this argument is also supported by examples by the British Parliament, from which the U.S. founding fathers had drawn inspiration. Natelson is also a contributor of The Epoch Times.
“The meaning of the word ‘impeachment’ is defined by the understanding when the Constitution was written, and both the British Parliament and early state legislatures impeached people after they had left office,” he said.
Colares and Levy both argue that because Belknap’s case has not been tested in court, it cannot yet be designated as legal precedent.
“We are in new constitutional terrain here,” Colares said.
Meanwhile, Natelson said whether the upcoming trial is constitutional, “no one knows for sure.”
“So anyone who answers this question categorically one way or another is either just arguing a case or is not well informed,” he said.
Another area that is drawing constitutional concern is Chief Justice John Roberts’s decision not to preside over the impeachment trial. Sen. Patrick Leahy (D-Vt.), the Senate president pro tempore, will instead preside over the trial.
“If Justice Roberts is not presiding over this, then it is not impeachment. This charade will be nothing more than bitter partisanship and political theater,” Paul said.
Colares surmises that Roberts’s decision is likely because the trial is against a person who is no longer president. He added, “in the unlikely case of conviction, the Court on which [Roberts] sits and which he presides might have to decide a challenge on the (un)constitutionality of the Senate’s authority.”
The impeachment was completed in a single seven-hour session and has been criticized by Republicans for its expediency and lack of due process.