‘New Constitutional Terrain’: Experts Mixed on Constitutionality of Trump Second Impeachment Trial

By Janita Kan
Janita Kan
Janita Kan
Writer
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 28, 2021 Updated: January 30, 2021

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.

Sen. Rand Paul (R-Ky.) raised a point of order on the Senate floor earlier this week, forcing the chamber to take a stance on the constitutionality of the proceedings. Although it returned a 55-45 vote, meaning the trial will go ahead, it also revealed nearly half of the chamber is of the view the proceedings are unconstitutional.

Many scholars who are arguing that the trial is unconstitutional are relying on an interpretation of Article II, Section 4, of the U.S. Constitution which states, “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.”

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.

Robert A. Levy, who is the chairman of the board of directors at the Cato Institute, explained the interpretation in a blog post. He said if Trump was still in office, he would be subjected to impeachment and conviction, according to Article II. But since his term has ended, even though he was impeached, he is no longer subjected to conviction.

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.

house impeachment
House Clerk Cheryl Johnson, Rep. Jamie Raskin (D-Md.) and Rep. David Cicilline (D-R.I.) walk through the Capitol’s Statuary Hall to deliver the article of impeachment for incitement of insurrection against former President Donald Trump to the Senate floor in Washington on Jan. 25, 2021. (Tasos Katopodis/Pool/via Reuters)

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.

These scholars are relying on Article I, Section 3, which states, “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.”

A group of constitutional law scholars wrote in an open letter (pdf) in support of the Senate trial arguing that due to Article I and Article II the Constitution’s impeachment power has two aspects.

“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.”

“As we know, Trump was impeached but not convicted. In my view, he may not now be constitutionally convicted or disqualified,” he added.

Historical Examples

Legal scholars supporting the trial has further contended that their argument that impeachment trials of former officeholders are proper is supported by historical precedents.

Professor Frank Bowman, a law professor at the University of Missouri and who has written about impeachment, and Professor Brian C. Kalt, a law professor at Michigan State University, co-wrote an op-ed on Jan. 11 arguing that the “history, structure, rationale, and application” of the impeachment clauses support a trial post-presidency.

They say there have been three examples in U.S. history where former officeholders, who were impeached, were tried by the Senate. One was Sen. William Blount, who the Senate eventually determined could not be subjected to impeachment because he was not an “officer” under the Constitution. Another was federal judge George English, whose trial was dismissed after House managers argued there was little point in proceeding.

The third was William Belknap, secretary of war for President Ulysses S. Grant, whose impeachment trial sparked a debate in a Senate about its constitutionality. Senators eventually voted to say that the Senate has jurisdiction over former government officials. Belknap, in the end, was narrowly acquitted.

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.

Article I, Section 3, Clause 6, of the Constitution, specifies, “When the President of the United States is tried the Chief Justice shall preside.”

john roberts
Supreme Court Chief Justice John Roberts arrives to the Senate chamber at the Capitol in Washington on Jan. 16, 2020. (Drew Angerer/Getty Images)

Paul argued in an op-ed earlier this week that without Roberts, the impeachment trial is not valid.

“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.

The Supreme Court has not responded to a request for comment from The Epoch Times or other news outlets over Roberts’s lack of participation in the upcoming trial.

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 Democrat-controlled House on Jan. 13 voted 232–197 to impeach Trump on a single article of impeachment, alleging that the president incited an “insurrection” that caused the U.S. Capitol breach on Jan. 6.

The impeachment was completed in a single seven-hour session and has been criticized by Republicans for its expediency and lack of due process.

Although Senate Majority Leader Chuck Schumer (D-N.Y.) is going full steam ahead with the impeachment trial, the 55-45 vote for Paul’s order could be an indication that a Trump conviction is unlikely as a two-thirds majority is needed to convict.

The article was updated to include more comments from interviewees.

Janita Kan
Janita Kan
Writer
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.