Is the Second Trump Impeachment Constitutional?
Is the Second Trump Impeachment Constitutional?
by Paul Engel
- This is the first time I know of where someone has been impeached twice.
- Is it Constitutional to try Donald Trump after he has left office?
- Media keeps using the word “unprecedented”. Does it mean what they think it means?
There’s been a lot of chatter about the second Trump impeachment. Some claim it is constitutional, others say no. The word “unprecedented” seems to be in just about every article about the topic. I think it’s time we look at what the Constitution says about the topic.
Let’s start by dispelling a myth about this trial.
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.
As I frequently tell you, don’t trust the headline. While the first paragraph of this article claims this is a “first-of-its-kind” proceeding, halfway through the article the author lists three historical examples of impeachment trials of people after they left office. So is this really a “first-of-its-kind” proceeding? Is it truly unprecedented?
From the Free Legal Dictionary
A court decision that is cited as an example or analogy to resolve similar questions of law in later cases.
So is this Senate trial a “first-of-its-kind proceeding”? Well, yes and no. This is the first time any President has been impeached twice. In fact, I know of no other person in history that has been impeached more than once. So yes, it’s an unprecedented event to have a second Senate trial for a single person, but is that the context for this phrase? No. The fact this is the second impeachment of Donald Trump is not even mentioned in this particular article. Since the writer of this article specifically lists three previous instances of the question of trying a former officer of the United States, let’s take a look at them.
Senator William Blount
In 1798, Senator William Blount was accused of conspiring to give the British control over Florida and parts of Louisiana, then held by the Spanish and French respectively. When Senator Blount’s actions were found out, he was impeached by the House, only he was expelled by the Senate according to Article I, Section 5 before his impeachment could be tried.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Since the Senate expelled Mr. Blount before the trial, his lawyers argued he could not be tried because he was no longer a senator. That argument failed and the subsequent Senate trial acquitted Mr. Blount.
Federal Judge George English
In 1926, judge George English resigned shortly after being impeached. While the House argued there was little point in proceeding with the impeachment, the House managers noted that:
The resignation of the respondent in no way affects the right of the
court of impeachment to continue the trial and hear and determine all
The Senate dismissed the case shortly thereafter.
Ex-Secretary of War William Belknap
Probably the case most people point to for impeaching an officer of the United States after they have left office is the case of William Belknap. Mr. Belknap, then the Secretary of War for President Grant, was found attempting to sell a post as an Indian agent. When this was revealed to the House, Belknap quickly resigned before he could be impeached. However, the House impeached him anyway. The Senate debated the question for quite some time before voting 37-29 that it did have the power to try an ex-officer. While Belknap was narrowly acquitted, it was believed that there were sufficient votes for conviction if he was still in office.
Far from unprecedented, the act of impeaching and trying someone who is no longer in office is not new in America. The question remains though: Is it constitutional?
From Article II, Section 4 of the Constitution…
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 impeachment is the process for removing someone from office, how can you remove someone who is not currently in office? I agree with those who say the House has no power to impeach someone who is not the President, Vice President, or civil officer of the United States. While the House has the sole power of impeachment, I know of no one who suggests that they have the power to impeach an ordinary citizen. That certainly brings into question the legitimacy of the impeachment of William Belknap. However, as with Senator Blount and Judge English, Donald Trump was impeached while still in office. Is it constitutional for the Senate to try a case to remove someone who has already left office? The Constitution doesn’t say specifically, but it does, in Article I, Section 3, Clause 6 state…
The Senate shall have the sole Power to try all Impeachments.
Furthermore, trying someone who has already left office may not be as moot as some might think. From Clause 7…
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:
Since the judgment in impeachment can extend not only to removal from office, but to disqualification from holding office again, there is a legitimate reason to try an impeachment of someone who leaves office before the trial.
Ultimately the decision rests with the Senate whether to try the impeachment of Donald Trump or not. Not only has the Senate decided to proceed with the trial, they acknowledge that Mr. Trump is no longer the President since they have not appointed Chief Justice Roberts to preside over the trial.
Article I, Section 3, Clause 6…
When the President of the United States is tried, the Chief Justice shall preside
Where does this leave us? Or more importantly, where does it leave Mr. Trump? Since he was impeached while still in office, it is up to the Senate to deal with it. Since democrats currently control that house of Congress, I was not the least bit surprised when they scheduled the trial. I can imagine the democratic party doing whatever they can to prevent another Trump administration. With the Senate so evenly divided though, I doubt that the two-thirds majority of the members present will vote to convict him. Of course, if Mr. Trump is acquitted, he may be allowed to run for office again. Who knows, at that point he may become the first person impeached three times.
More importantly, at least to my mind, this is another opportunity to dispel the myths flying around like bats in a cave. Please, look at this as a chance to correct the misinformation you’re receiving from others. This is not unprecedented; it is not even unique. This is the fourth time in history that an impeachment has been tried after the person has left office. Perhaps, in some small way, you can tone down the rhetoric and partisan bickering with just a little bit of facts, common sense, and reason.