Reflections on Impeachment

The country is now faced, for the second time in two years, with the trial on impeachment of President Donald J. Trump. There is one remarkable aspect to the case, however: the president in the action isn’t the president.

After the House of Representatives had hastily passed the single article of impeachment without anything even resembling due process on January 13, the Senate began its proceedings this week by voting on the much-debated constitutionality of the impeachment of someone who is no longer in office. By a close vote (five Republicans crossed party lines, making the tally 55 to 45), the Senate ruled to proceed with the trial.

The issue of the trial’s constitutionality is nowhere as cut-and-dried as some commentators have made it seem, however, and there are strong arguments on both sides. The simplest argument against its constitutionality can be inferred directly from the text of the Constitution:

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…

The conjunction employed between “removal from office” and “disqualification” is and, implying that there must be removal from office as a necessary precondition for disqualification. If that were not the case, the Framers would have written or.

Given the terse wording of the Constitution, much of its interpretation depends on legal precedent. Impeachment has been used rarely over the 244 years of our country’s history; precedents are therefore few and far between. As far as impeaching an officer who is no longer in office, the relevant precedents are two: the cases of Secretary of War William Belknap and President Richard Nixon.

Belknap, who served under President Grant from 1869 to 1876, was involved in a kickback scandal involving trading posts on the western frontier. He resigned his office literally minutes before the committee investigating him voted for impeachment. Proceeding with the impeachment even in the face of Belknap’s resignation was seen as a means of preventing him from evading prosecution: resigning, his opponents argued, shouldn’t be a way to get away with something illegal. A little more than a month after Belknap’s resignation, the matter was forwarded to the Senate for trial. Several weeks (rather than half an afternoon, as was the case this week) were spent debating the question of whether the Senate had jurisdiction over someone no longer in office. Belknap’s attorneys contended that:

All the reasons upon which the proceeding was supposed to be necessary were applicable only to a man who wielded at the moment the power of the Government, when only it was necessary to put in motion the great power of the people, as organized in the House of Representatives, to bring him to justice. It is a shocking abuse of power to direct so overwhelming a force against a private man.

In rebuttal, the impeachment managers maintained that:

the power of the Senate of the United States over all grades of public official national wrongdoers…to interpose by its judgment a perpetual barrier against the return to power of great political offenders, does not depend upon the consent of the culprit, does not depend upon the accidental circumstance that the evidence of the crime is not discovered until after the official term has expired or toward the close of that term, but is a perpetual power, hanging over the guilty officer during his whole subsequent life, restricted in its exercise only by the discretion of the Senate itself…We claim that[,] the House of Representatives having obtained jurisdiction of the subject-matter by instituting these proceedings against the defendant, he could no more defeat them by resigning midway than he could defeat the Constitution itself.

While the Senate passed the motion to try the case, the supermajority necessary to convict wasn’t to be had, and, so, Belknap (who was patently guilty) was acquitted. Of the 25 senators who voted to acquit, 23 of them did so because they felt the Senate had no jurisdiction in the case. Thus the Belknap impeachment is a strong argument in favor of the constitutionality of the current Senate trial. But Belknap also shows that the impeachment was ineffective because of the Senate’s questionable jurisdiction in the matter. (Belknap was subsequently indicted for his crimes through the more usual juridical channels. President Grant intervened, however, and the charges were dropped.)

As for Nixon, following the investigation into his role in the cover-up of the Watergate scandal and facing certain impeachment, he beat Congress to the punch and resigned on August 8, 1974. In the wake of his resignation, and ignoring the Belknap precedent, the House tactfully voted to “accept” the Judiciary Committee’s report on the Watergate affair on August 21, and left the matter to rest.

On September 8, Nixon was pardoned by his successor, President Gerald Ford, although one needs to point out that the Constitution’s Pardon Clause expressly limits the presidential pardon power from extending to cases of impeachment. Thus there was nothing to have prevented Congress from impeaching Nixon at a later date. But, just as Congress chose to proceed against Belknap in the same circumstances, it chose not to proceed against Nixon.

A critical difference between the Belknap and Nixon cases on the one hand and the Trump case on the other is that both Belknap and Nixon resigned their offices. The clock simply ran out on Trump. As a result, the argument advanced against Belknap – that he shouldn’t be allowed to escape prosecution by resigning – does not obtain in Trump’s case.

The Belknap precedent won the day in the current Senate, which voted on February 9 that it did have jurisdiction in the case and that the trial was constitutional. And constitutional it very probably is. It is, however, also pointless: the entire point of impeachment is to remove an offending government officer from his office. Yes, the impeachment clause also blocks someone who was tried on impeachment articles and found guilty from holding office again, but I suspect that even the Framers would have agreed that that clause was gravy, and that impeachment without removal from office would have been viewed as a pointless exercise.

Although people were crying for the impeachment of President Trump before he even took office, and are still crying for impeachment weeks after he’s ceased to be the president, the country ought to take note and take care about such frivolous deployment of one of Congress’ most powerful constitutional weapons. Impeachment was not intended as a means of showing partisan displeasure with an officer of the government. It was also not intended as a referendum on a particular presidency – there is a constitutional means for doing that; it’s called election. Indeed, impeachment is not just the legislative’s check on the executive: it’s a check on the direct will of the people. The people elect the president, and, in a republic such as ours, the will of the people should be paramount. The Framers gave Congress the extraordinary power to override the will of the people, but it is a power that should be used with extraordinary care and only in extraordinary circumstances. Unfortunately, the use of the process in the Clinton and first Trump impeachments have cheapened the weapon to the extent that Trump was impeached the second time without recourse to anything resembling due process: the article of impeachment was rushed through the House of Representatives in a matter of hours. Hate the man Donald Trump all you will (and the man doesn’t seem to be adverse to being hated), that doesn’t give you grounds for impeachment. If anything, let the man, now that he’s a private citizen, be indicted by a grand jury and properly tried on that incitement.

But then a real trial in a real court of law would require rules of evidence and standards of proof, things that are being largely ignored by the impeachment managers currently speaking on the Senate floor. There is a legal standard for incitement – of which the ex-president stands accused – established by the Supreme Court in Brandenburg v. Ohio. Brandenburg was a KKK leader charged with advocating violence; in the words of the Court’s decision:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

This produced the so-called “Brandenburg Test”, calling for: (a) proof of the intent to speak; (b) the imminence of lawlessness, and (c) the likelihood of lawlessness. I leave it to the reader to decide whether these criteria were met by Donald Trump’s remarks in front of the White House on January 6, 2021.

The irony is that doesn’t matter. Trump isn’t going to be judged on the merits of his case, no more than Belknap was. He is going to be acquitted because nearly half the members of the Senate have taken the standpoint that the trial is unconstitutional and that the Senate doesn’t have jurisdiction in the case. The vote on the resolution as to the constitutionality of the impeachment shows that there will never be the supermajority necessary to convict, and that private citizen Donald J. Trump will get to remain…private citizen Donald J. Trump.

The precedent that no one seems to be bearing in mind is that of Nixon. The first modern impeachment (and the first conviction of a sitting president on articles of impeachment) was inevitable, but, because cooler heads were able to prevail, everyone did the right thing for the good of the country. Nixon resigned, Congress dropped the matter and Ford pardoned his predecessor. These were not popular moves at the time. People were incensed, perhaps not least of all because the pardon smacked of a deal made with the only non-elected president in US history. (Ford was Nixon’s own appointee for the office following the resignation of Spiro Agnew.) Still, the pardon was the right act at the right time. Nixon had, as Ford stated, suffered enough, and the country needed to start putting itself back together. Impeaching Nixon after he left office would only have dragged on an ugly chapter in our history.

The wisdom of the aftermath of the Nixon presidency does not seem to be prevailing today, and the second Trump impeachment causes a country that is riven by strife only to be riven further apart. Bear something in mind: Nixon was guilty by any standard and had lost all his support in Congress when he resigned, and would unquestionably have been impeached, convicted and removed form office. But the matter was left to lie after the president chose the least dishonorable way out, even though his resignation was precisely that which was feared in the Belknap impeachment, a means of evading punishment. Trump’s objective guilt is at the very most a matter of some doubt: his speech on January 6 was foolish and impolitic, but very plausibly fails to meet a strict legal standard of incitement. The impeachment managers are working hard to circumnavigate that problem, but the reality is that we are looking at the hasty and jurisprudentially flimsy impeachment of a no longer sitting president. Small wonder that Chief Justice Roberts refused to preside over the trial.

What is being achieved, then? Very little. The outcome of the trial is pretty much inevitable, whether 34 Senators vote to acquit based on their conviction that Trump isn’t guilty or whether they vote to acquit because they believe the Senate has no jurisdiction over the case. The country isn’t going to get anything for its money, and the Senate isn’t going to get anything in exchange for its time.

What will come out of the second Trump impeachment trial, is more bad feeling across the political spectrum. The trial will reinflame passions both for and against Trump for no good reason, and push back the call for unity to which the new president at least pays lip service. The Congress facing the Nixon crisis was far wiser than the one we have today. It did the hard thing for the good of the country. Congress today is doing anything but acting in the nation’s best interests, despite the fact that, last time I checked, preserving those best interests was their chief raison d’être.

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