There’s a bit of a disagreement about whether the Senate can vote to convict our impeached president after he toddles off on January 20th. The legal experts who say the Senate can do it and should do it have by far the best argument.
Yesterday, Prof. Laurence Tribe of Harvard Law explained why the Senate can act.
Prof. Stephen Vladeck of the University of Texas law school explains it below:
Yesterday’s vote by the House of Representatives to impeach President Txxxx (again) came notwithstanding objections from Republicans that such a move is unnecessary. Because Mr. Txxxx’s term ends at noon on Jan. 20, the argument goes, there is little point in expending energy to reinforce what is already, despite Mr. Txxxx’s best efforts, a legal inevitability.
But some commentators have gone further — arguing not only that Congress should not impeach and remove Mr. Txxxx but also that come Jan. 20, it cannot do so, because the Constitution doesn’t allow for the impeachment and removal of “former” officers. This argument is wrong as a matter of text, structure, historical practice and common sense. And Mr. Txxxx is the poster child for why, even after he leaves office, such accountability is not just constitutionally permissible but necessary.
With the Senate not expected to reconvene until next Tuesday, Mr. Txxxx’s impeachment trial could not begin until Wednesday afternoon at the earliest — after the inauguration of his successor. Article II, Section 4 of the Constitution provides that 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.” If that were all that the Constitution said about impeachment, there might be something to the argument that once the individual no longer holds the office, the impeachment power becomes defunct.
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: First, it must decide whether an officer should be removed. 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: 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. Txxxx 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. Txxxx 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. Txxxx), 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.
If the authors of the Constitution had been a bit more careful, they would have written “removal or disqualification”, not “removal and”. Damn founding fathers! That blemish seems to be the only reason to say the Senate can’t act after the 20th. As the professors explain, it’s not a good reason and not how impeachment has worked in the past.
I don’t know if there are 17 Republican senators who will agree to convict DJT (that plus the 50 Democrats will be enough). There are excellent reasons to do so. For one thing, he deserves to be convicted. Another reason is it will permit the Republicans to free themselves from the threat that he will run again in 2024 (actually, it will stop him running again and seeking campaign contributions as of January 20th, which he will no doubt do if given the chance). Any Republican senator who wants to run for president has a motive to remove competition.
A third reason is that we shouldn’t have to subsidize this guy’s gilded lifestyle after he leaves office. He’s supposed to be a billionaire. Let him uses his own resources, assuming he stays out of prison. In particular, he can afford to hire his own security detail, especially now that it’s been revealed that Ivanka and Jared wouldn’t let the Secret Service use the bathrooms in their D.C. mansion.
PS: I don’t know if it’s true, but former presidents are supposedly eligible for top secret briefings from the government. We shouldn’t trust one more secret to the Lord of the Lies and his extremely big mouth.