Why Trump Can Be Convicted Even as an Ex-President
He is the poster child for why it's constitutional.
But Article
I, Section 3 says more. In describing the powers of the Senate to conduct an
impeachment trial, it provides that “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”
(emphasis added).
That latter clause is the key, because it drives
home that the Senate has two decisions
to make in impeachment cases:
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First, it must decide whether an officer
should be removed.
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Then it must decide whether this person
should be disqualified from holding any future federal office.
Indeed, of the eight officers the
Senate has ever voted to remove, it
subsequently voted to disqualify only three of them — reinforcing that removal
and disqualification are separate inquiries.
And as this procedure and historical practice make clear, by the time the
Senate votes on disqualification, the officer
has already been removed.
In other words, disqualification, at least, is itself necessarily a vote about
a former (as opposed to current) officer.
More than that, the disqualification power is
both the primary evidence of and the central reason the
Constitution allows for the impeachment of
former officers.
Were it otherwise, an officer facing impeachment, or an officer who has already
been impeached and is about to be removed, could also avoid disqualification
simply by resigning.
In 1876, disgraced Secretary of War William
Belknap tried exactly that — resigning minutes before the
House vote on his impeachment.
The House impeached
him anyway, concluding that his resignation did not defeat
Congress’s impeachment power.
And although some senators ultimately voted
to acquit Belknap (who narrowly escaped a guilty verdict) because he was no
longer in office, the Senate as a body
first concluded that it had the power to try former officers, adopting a
resolution that Belknap could be tried “for acts done as Secretary of War,
notwithstanding his resignation of said office” before he was impeached.
The Belknap case
cemented two precedents:
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Congress can impeach
and remove former officers, but the fact that the defendant is no longer in
office is one factor that senators may take into account in deciding whether
to vote to convict.
So, when President Richard Nixon resigned
in August 1974 in an effort to forestall his seemingly inevitable impeachment
and removal, that act did not deprive Congress
of the constitutional power to still impeach, remove and disqualify him; it
merely mitigated the perceived political expediency of doing so.
By resigning, Mr. Nixon took at least some
responsibility for his conduct. And the circumstances of his resignation left
no reason to believe that he would ever again be a candidate for federal
office.
-
But there is no indication that Mr.
Trump plans to resign. His term ends next
Wednesday only because Section 1 of the 20th Amendment says so.
He is not going willingly. And he has made no secret of his interest in
running for president again in 2024.
What’s more, under the Former
Presidents Act of 1958, he stands to receive significant financial and
other tangible benefits, including a handsome annual stipend, funds for
offices and a staff, and a pension.
But that same statute denies such benefits to a former president who was
removed “pursuant to Section 4 of Article II of the Constitution.”
So whether Mr. Trump is impeached,
convicted and disqualified determines not only whether he could ever again
hold federal office but may also bear upon the extent to which federal
taxpayers will be subsidizing his activities
in the years to come.
The conservative argument would say that the
Constitution leaves
Congress powerless to deal with such a case — or with any scenario in
which a president commits grossly impeachable acts in his final days in office.
Not so. Whether he should be
convicted and disqualified remains, under the
Constitution, in the
sole purview of the Senate.
And whereas the conservative argument against a
post-Jan. 20 impeachment presupposes that the matter will inevitably end up in
the courts (which may be sympathetic to Mr. Trump), that claim, too, is
erroneous.
In 1993, the Supreme Court held that
it’s not for the courts to review the propriety of
impeachments.
As Chief Justice William Rehnquist wrote,
neither any extrinsic evidence from the Constitutional
Convention nor contemporaneous commentary suggested that the
founders even contemplated “the possibility of
judicial review in the context of the impeachment powers.”
It’s ultimately Congress’s call — for
former officers as much as current ones.
Stephen I. Vladeck (@steve_vladeck) is a professor at the University of
Texas School of Law.
SOURCE NYT