The U.S. Senate is preparing to put Donald Trump on trial after he has already left office at the end of his term and has become a private citizen once again. If the Senate proceeds with this star chamber proceeding, it will be acting in a blatantly unconstitutional manner.
Trump was impeached while still serving as president, on the grounds of alleged “incitement of insurrection.” The charge flowed from the mob attack on the Capitol building on January 6th, which followed Trump’s speech at a peaceful “Save America” rally at the Ellipse near the White House. However, House Speaker Nancy Pelosi did not immediately send the article of impeachment to the Senate, which is necessary to trigger the Senate to proceed with the trial. In any event, the Senate has been on recess and is not returning until January 19th. The Senate is not planning to take up Trump’s trial until he is already out of office and the Democrats assume control of the Senate.
To begin with, there is no merit to the insurrection incitement charge against Trump. In his January 6th speech, the centerpiece of the House’s impeachment article, Trump said to the rally attendees: “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” (Emphasis added)
Trump was asking his listeners to exercise their First Amendment right to peacefully assemble, protest and petition their government. There was nothing in what Trump said in his speech about storming the Capitol, committing violence, looting, vandalism or the like. The House impeachment article takes words Trump used like “fight” completely out of context. They did so in a desperate attempt to link Trump to what appears to have been an attack on the Capitol that was pre-planned well before Trump spoke. The rioters acted on their own and should be prosecuted to the fullest extent of the law.
Incitement, assistance, or participation in a rebellion or insurrection against the authority of the United States and its laws is a federal crime. A violation of the law can result in fines, imprisonment and disqualification from “holding any office under the United States.” Once Donald Trump leaves office, if any federal prosecutors are foolish enough to believe that Donald Trump committed such a crime, they are free to try bringing criminal charges against him in a court of law.
A trial of a private citizen, including Donald Trump after he leaves office, for allegedly committing the crime of inciting an insurrection, whenever it allegedly occurred, belongs exclusively in the courts. It is only in the courts where the accused is afforded all constitutionally required due process protections.
The Senate is a political body, with limited jurisdiction to try cases of alleged “treason, bribery, or other high crimes and misdemeanors” against the president, vice president and all civil officers of the United States while they are still in office. The Senate is limited to imposing the political punishment of removing the convicted official from office and only then declaring that such official is ineligible for federal office ever again.
Article I, Section 3 of the Constitution vests the power in the Senate alone to “try all Impeachments.” It goes on to say that “[W]hen the President of the United States is tried, the Chief Justice shall preside.” Article II, Section 4 of the Constitution 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.”
The Constitution’s text does not confer any power on Congress to indict, convict and punish a former president after he has left office. It speaks in the present tense of when “the President of the United States is tried.” The punishment upon conviction is that “[T]he President…shall be removed from office.” (Emphasis added).
Alexander Hamilton, who certainly knew a thing or two about what the Founding Fathers had in mind, said in Federalist #65 that the Senate was limited in its removal and disqualification powers to the “dismission from a present, and disqualification for a future, office.” (Emphasis added)
The Constitution’s text could not be clearer. The text alone should end the discussion as to whether Trump can be tried and convicted by the Senate during his successor’s presidency and after Trump has once again become a private citizen. However, those seeking a Senate conviction claim it is still necessary to ensure that Trump can never occupy any federal office again. They cite another clause in the Constitution and historical precedent to support their argument. They fail on both counts.
The proponents for a Senate trial of private citizen Donald Trump point to a sentence in Article I, Section III of the Constitution, stating that “[J]udgment 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.” Stephen Vladeck, for example, argues in a New York Times op-ed article that this 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.” Vladeck then argues that since Senate disqualification follows the president’s removal, it must mean that “disqualification, at least, is itself necessarily a vote about a former (as opposed to current) officer.” Trump can, the argument goes, be disqualified from holding federal public office by the Senate after he has left office at the end of his term, as if he had already been “removed” from office.
This is a ridiculous theory to say the least. Leaving office after one’s term has ended in the normal course is not the same as being involuntarily “removed” from office before the end of the term as a result of a Senate conviction. And such removal following conviction by the Senate must precede a vote on future disqualification. If the Senate does not convict, remove and disqualify President Trump before he becomes private citizen Donald Trump, there is no constitutional authority for the Senate to do so retroactively following the end of his term. If there were such authority, a partisan House and Senate could seek revenge on any political enemy long gone from office and prevent that person from ever again becoming a federal officeholder or continuing to receive federal benefits.
The extraordinary power of Congress to impeach and remove a president was not intended as an instrument of revenge. Rather, it was intended as a check against a president still in office and in a position to wreak more havoc on the body politic unless removed. If Trump-haters want to ensure that Trump cannot be re-elected as president in 2024, their sole recourse to seek a conviction for alleged incitement of insurrection is through the courts.
Hold on, say the Senate trial proponents who believe that history is on their side. They point to the case of a secretary of war, William Belknap, who had resigned his position in 1876, just minutes prior to a vote by the House on his impeachment. The House proceeded anyway to impeach Belknap, followed by a trial in the Senate.
Belknap did go on trial before the Senate, but he was acquitted. Why? As Vladeck himself acknowledged, some senators voted to acquit Belknap “because he was no longer in office.” Vladeck argued nevertheless that the Senate as a body had passed a resolution declaring it was authorized to put Belknap on trial for acts that he allegedly committed while serving as secretary of war even though he had resigned prior to being impeached. Since Belknap was acquitted, however, this self-serving assertion by the Senate is a moot point. It remains only an assertion untested in the courts and, as such, has no precedential value.
Not only the Constitution’s text, but plain old common sense leads to just one logical conclusion. The Senate’s constitutional authority to act as judge and jury must be applied narrowly to only current federal officeholders. After a government official, from the president on down, leaves public office, he or she is a private citizen like the rest of us. This person is protected under the 5th Amendment from being “deprived of life, liberty, or property, without due process of law.” Being excluded from holding a future public office is a deprivation of liberty. Only an independent judiciary can guarantee such due process.
As a political body, the Senate is not designed to guarantee due process and impartiality. The impeachment trial process, Alexander Hamilton wrote, “can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it.”
The constitutional case against putting Donald Trump on trial in the Senate after he leaves office as the means to disqualify him from holding a future public office is clear-cut. The Senate will be doing a great disservice to the country by fueling more dangerous political divisiveness while wasting valuable time and resources in the process.
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