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The Trump Trial Is Unconstitutional

Some have been arguing that holding an impeachment trial after Trump has left office would be imprudent, but there seems to be little resistance to it on constitutional principle. Those who defend the legitimacy of such a trial rely on tortured readings of the text, impute intentions based on what is omitted or inconsistent in the text, and pay insufficient attention to what the framers said about the relevant clauses. Much is made of the precedent of Secretary of War William Belknap’s being tried after having resigned, but little attention is given to the weakness of the arguments for Congress’s authority to do so (Hinds’ Precedents, Vol. 3). A precedent may be driven by partisan impulses or based on an honest misinterpretation of the Constitution.

Also used to bolster the case is the power in a couple of early state constitutions to impeach people who have left office. These are, however, irrelevant and, if of any value, argue for the other side.

I am generally conservative in political matters and lean toward the Republican Party, although less so given the loyalty of some and craven silence of others in the face of Trump’s gross disregard for the constitutional and legal order. I would be very pleased if Trump were disqualified from ever holding any national office. There is, however, no constitutional path for achieving this outcome.

The sensible interpretation, then, is that removal and disqualification are the two possible consequences of one impeachment trial, and only someone who is being removed by impeachment can also be disqualified.

Impeachment is inherently political. As Alexander Hamilton states in Federalist 65, it is a “method of NATIONAL INQUEST into the conduct of public men,” not into the conduct of private persons while they were in office. Those in office, and particularly presidents, are clearly distinguished from those out of office: “The President of the United States is liable to be impeached, tried, and, upon conviction…removed from office,” after which, as a private person, he is “liable to prosecution and punishment in the ordinary course of law” (Federalist 69).

The Constitution’s provisions for impeachment are not crystal clear. There is some uncertainty about the grounds for impeachment. All the stated grounds are strictly political: treason and bribery are inherently political, and the “high” in “high crimes and misdemeanors” distinguishes political ones from those defined by ordinary civil and criminal law. As Hamilton says (Federalist 65), impeachment concerns “abuse or violation of some public trust” and “injuries done immediately to the society itself.” This clarification hardly removes all vagueness, but how could the framers have developed a more precise and comprehensive list of grounds for impeachment? Impeachment, they understood, will necessarily involve unusually broad latitude for judgment. An impeachment proceeding “can never be tied down by such strict rules, either in the delineation of the offense by prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the court” (Federalist 65). For this reason, they placed impeachment in large political bodies and established a high bar for conviction.

But did the framers consider this a comprehensive list? The specified grounds discussed above are in Article II.4, which requires the removal of the president and other officers if convicted for one of those misdeeds. It could be argued that this section mandates removal only if convicted of those specific charges, leaving open the possibility of being convicted on other charges. But the only sensible understanding of impeachment is that its aim is to remove malefactors from office. Leaving some unspecified latitude for lesser charges would contradict the framers’ fears that impeachment could become a tool of factions in Congress. In any case, this issue is not immediately relevant because the charges against Trump clearly fall within the specified grounds for impeachment and conviction.

There remains a slight ambiguity concerning the two consequences of conviction, and about this in particular, those arguing for the constitutionality of trying an ex-president make much. “Judgments 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” (Article I.3). Although there obviously cannot be a trial for removal from office if the person is already gone, can there be, nonetheless, a trial exclusively for disqualification? Only if these are clearly unrelated consequences of conviction can one even begin to argue that someone no longer in office could still be tried.

The evidence for the separability of disqualification is thin. One clause discussed above (II.4) speaks only of removal as the consequence of conviction. In the Federalist, Hamilton speaks of the president being “liable to be impeached, tried, and, upon conviction…removed from office” and says nothing about disqualification (#69). This passage, however, is contrasting the president from the king of Great Britain, who could not be removed. It would have been unnecessary, and even a little silly, to speak about disqualification of a king.

Elsewhere, though, the Constitution and the Federalist tie them together. Article I.3 states that judgment in cases of impeachment “shall not extend further than to removal from office, and disqualification to hold and enjoy any office.” Hamilton understands the two as concomitant consequences: conviction, which must entail removal, will also entail a “perpetual ostracism from the esteem and confidence, and honors and emoluments of his country” and later in the same paper he speaks of a sentence of impeachment as “dismission from a present, and disqualification for a future office” (Federalist 65).

The sensible interpretation, then, is that removal and disqualification are the two possible consequences of one impeachment trial, and only someone who is being removed by impeachment can also be disqualified. There might be two votes, one on each—for lack of a better term—punishment, but they would be within the context of the same trial.

It is doubtful, though, that the framers thought an impeachment trial could conclude with an officer being removed without also being disqualified from holding any national office. Would they have thought that someone convicted of treason, bribery, or genuinely high crimes and misdemeanors was nonetheless fit for office? In any case, that is as far as the ambiguities can be stretched, leaving us very far from any basis for trying someone already out of office.

The framers made a specific provision for impeachment trials of presidents by requiring that the Chief Justice of the Supreme Court preside. It seems at least implausible, were an ex-president also to be subject to an impeachment trial, that they would not have specified the same or some other provision?

At least some of the framers must have considered the possibility of a public official avoiding impeachment or conviction by resigning. This probably would not have disturbed them much. The aim of impeachment is to remove someone from an office, the powers of which could be further misused.

Even if the arguments above are unconvincing, those pushing the legitimacy of trying an ex-president must explain how the momentous possibility of an impeachment trial for a private person was left by the framers to be discovered only through inferences based on slight inconsistencies and apparent silences in the text, inferences that are evidently contradicted by the surface of the text. And is it even remotely conceivable that they would speak of removed officers being still subject to the ordinary law and yet fail to mention ex-officers being subject also to an impeachment trial?

The defenders of a trial for Trump would need as well to be forthright about the implications of their argument. For example, could the Senate delay an impeachment trial simply to immiserate an ex-officer it could not convict? The Constitution, moreover, does not distinguish the conditions under which someone can be impeached from those under which he can be tried. If it is constitutionally unacceptable that someone escape an impeachment trial by resigning or being replaced, the same would be true for impeachment. In other words, if someone can be tried after leaving office, what would stand in the way of impeaching him too? Could a future Republican Congress take a shot at disqualifying, say, Hillary Clinton or James Comey?

But enough. The text and Hamilton’s commentary are sufficiently clear: those in office are subject to impeachment and trial; those out of office are not.

Yet what about, it might be argued, the 1776 Virginia and Delaware (Art. 23) constitutions? They allowed impeachments of private persons for their actions while in office. Both state that someone who was governor could be impeached only after leaving office, with the principal aim of the convicted person being “forever disabled to hold any office.”

These constitutions, in other words, are models for what is being defended and pursued in the case of Donald Trump: impeachment trials for ex-officers and to the end, without regard to removal, of disqualifying them from offices in the future. These constitutions, however, are perfectly explicit about this use of impeachment and the procedures to be followed. Nothing is left to inference.

Revisions of the Virginia (1830) and Delaware (1792) constitutions, moreover, replaced these regulations with those of the national constitution: House impeachment; Senate trial; conviction extending no further than “removal, and disqualification”; and thereafter subject to the ordinary course of law. Obviously, these states decided impeachment should be used to remove as well as disqualify officers. Had they wished the impeachment power also to apply to those out of office, they could not have been confident that mere inferences from the new language would do the trick. Surely, they would have explicitly distinguished removal and disqualification. They did not. And they would have carried the specific procedures for impeachment of private persons from their old into the new constitutions. They did not.

At least some of the framers must have considered the possibility of a public official avoiding impeachment or conviction by resigning. This probably would not have disturbed them much. The aim of impeachment is to remove someone from an office, the powers of which could be further misused. Resignation solves that problem. Resignation under these circumstances, moreover, would tend to be accompanied by some degree of public shame.

Who knows if someone thought about the extremely remote possibility of an officer’s term ending soon after committing impeachable acts and, therefore, before impeachment or a trial could be concluded? In any case, they made no provision for it.

Adhering to the Constitution as I understand it would mean that Trump, sadly, would avoid any direct political consequences for his impeachable actions. But he is out of office, and the question of impeachment is now moot.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 27, 2021 at 08:03:12 am

Your unwillingness to discuss the hypocritical stance of the democrat House and the farce of the Mainstream Media astounds me.

At this time, I have not seen the Trump impeachable stuff you mention. The ruling class in America along with the propaganda put forth by the democrat leaning press corps. causes me to have doubt about the strength of your accusations. Like you, I am not a Trump fan, but based upon all the stuff regarding more obviously blatant sedition on the part of the democrats it is disappointing that you've chosen not advocate for their constitutional impeachment.

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Terry Schuck
on January 27, 2021 at 13:31:30 pm

But what does any of that have to do with the constitutionality of the current proceeding, which was the point of the article?

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Pale Rider
on January 27, 2021 at 09:35:46 am

"...loyalty of some and craven silence of others in the face of Trump’s gross disregard for the constitutional and legal order. I would be very pleased if Trump were disqualified from ever holding any national office."

Oh, ok. But given the thundering, peremptory, declamatory quality of such a pronouncement, given the fact it's wholly immaterial to the argument being made, it would be helpful to delineate the specifics behind such a statement of seeming principle. Presumably it refers to doubts about the election's integrity and the manner in which Trump expressed those doubts, but it would reflect a far more principled position if the author were in fact to delineate his position, and therein leave it open for critique and review. Otherwise, is the author simply burnishing his credentials and assuring his status within a certain status quo? Such a brusquely intoned certitude that otherwise says nothing whatsoever can hardly be said to be principled upon any reliable, upon any more solid grounds.

And, for example, who else might be disqualified from holding office, or not, and why? Biden? Obama? Hillary? Bill? Who? Why? Why not? The political arena, for those with (genuine) conservative and classical liberal motives in entering it, demands moral and political courage to no small degree, especially so given the cynical and brutal, the vicious and venomous, the insidious and pernicious tactics/strategems the left and left/Dems are willing, even eager to deploy. Trump had and has those motivations, and that courage as well.

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Michael Bond
on January 27, 2021 at 09:37:58 am

I immediately stopped reading this article at the third paragraph. It is there where the author engages in unseemly virtue signaling by professing his dislike of Trump. Such confessions of scorn for The Donald are expected, indeed, they are de rigueur and constitute a form of doxology among the faithful in the secular church of academia. Conservatives like me, however, view such virtue signaling as a reflection of Trump Derangement Syndrome. We see it as symptomatic, both of disorder, in one's analytical skill and capacity for good judgement, and of deficiency, in courage and fortitude, in one's willingness to risk social ostracism or resist professional criticism. TDS also reflects a strong predilection toward group-think and similar such herd behavior.

For me as a serious reader, such negative qualities as a questionable ability to evaluate, dubious judgement, and intellectual conformity are highly undesirable in a writer who would aspire to discuss serious matters. So, in deference to the brevity of life, which compels me not to waste my invaluable time, I stopped reading this writer when I decided, very quickly and without really reading him and solely because of his symptomatic display of TDS, that reading his article would be a waste of time for me. I suspect many others feel the same way.

I ask the "Nixon question" of the writer and his TDS minions: "What will you people do when you don't have Trump to kick around?"
I ask L&L's editors: "Is it written in the stars that a writer on your site must decry Trump?''

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paladin
on January 27, 2021 at 13:38:11 pm

Too bad, Your myopia caused you to miss a good article. This article is about the constitutionality of the current impeachment proceeding. As a lawyer and libertarian, I found it immensely informative. For you to focus on a passing comment you see as virtue-signaling is to look past 99.9% of the substance. Would you choose to ignore all news about Blue Origin because of Jeff Bezos’ politics? Isn’t that its own form of derangement?

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Pale Rider
on January 27, 2021 at 17:19:00 pm

I ask L&L's editors: "Is it written in the stars that a writer on your site must decry Trump?''"

Sadly, my friend, it would appear to be the case.
Courage is a manly virtue. Are there no longer any men amongst the (putative) conservative commentariat?
As Don Corleone said: "Stop crying. Be a man."

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gabe
on January 27, 2021 at 10:52:31 am

Stifle yourself, Stephen!

Would the essayist be so kind as to SPECIFY how and when Trump violated the Constitution and Legal order?

One grows weary of unspecified and unsubstantiated allegations.
Is the essayist concerned about faculty lounge disapprobation should be not include the standard slanders against The Trumpster.
Why ruin an otherwise fine essay with this regurgitation of Leftist rhetoric?

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gabe
on January 27, 2021 at 11:01:48 am

One need not like a person to recognize that bringing charges that are not consistent with Procedural Rules, against someone, is unconstitutional. I suppose if we were to take seriously the crimes that are impeachable, for example, allegations of perjury, obstruction of justice and denial of one’s inherent unalienable Right to Life, upon which our inherent Right to Liberty and The Pursuit of Happiness depends, all those who are subject to impeachment, but deny that a human person can only conceive a human person, thus every son or daughter of a human person can only be, in essence, a natural human person, would be held accountable, for violating Due Process Law.

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N.D.
on January 27, 2021 at 11:07:42 am

Important issue these days of course. Many misconceptions here. But one right now. Strategic one:

The respectable author of the post, is sure, that impeachment is inherently political. But it is not. Not at all with all due respect. The fact that it is initiated by politicians, or prevailed by politicians, doesn't render it political. For, it is a trial. It is a court. Very unique one. Ad hoc one. Sovereign one. But, a trial and court in the plain meaning of it. It bears all characters of court: procedure. prevailing whether the defendant is guilty or innocent. Judges (Senators). Based on evidences. Hearing. Statements. Testimonies. Oath. This is a court.

Yet, what kind of court and why so? I quote the supreme court, in the case of the impeachment of Nixon (not the president, but the judge at the time). Here:

" The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179,186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, § 3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442."

End of quotation:

So, for certain particular reasons as stated, not an ordinary court can do it, but, the Senate. Yet, it is a court. Very special one. The fact that one may expect voting along lines, doesn't render it, political process.

Here to the ruling:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep506/usrep506224/usrep506224.pdf

Thanks

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El roam
on January 27, 2021 at 13:16:14 pm

Just punch line, to my comment above:

As such, the impeachment, is not political process, but rather, judicial process.

One can analogize it to grand jury (Congress, decision about indicting) and the Senate, as court as mentioned above.

Thanks

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El roam
on January 27, 2021 at 13:29:14 pm

You misunderstood the meaning of the assertion that impeachment is a political remedy. It is not merely because it is initiated or conducted by politicians, though that is an aspect. Nor is the fact that the procedures bear a legalistic or court-like appearance and process particularly pertinent to this question. It is political, because its outcome is political. The purpose is political: removal from office. If you don’t understand the distinction Hamilton was making, then you don’t understand the issue. And the quote from the Nixon case has pretty much nothing to do with the topic of the article.

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Pale Rider
on January 27, 2021 at 14:35:47 pm

Pale Rider,

Well, with all due respect, it has nothing to do with political issue either. You try to explain by the way, something that hadn't been explained at all by the author of that post. But it is senseless with all due respect.

The fact that there is an outcome, doesn't mean that it is political. What is political in the outcome ? The president, is either found guilty or innocent from charges brought against him, and prevailed so by a court in fact.

And the citation I brought, shows clearly, that the framer suggested at the time, that it should be a court at first place. A court, because it has to do with judicial process, not political. What part has been missed here ?

This is common language or perception to consider it political process. But has nothing to do with political whatsoever.

The president, becomes suspect of committing crime or other offenses, and he is either convicted , or exonerated. That's it.

The outcome then, has nothing to do with politics.

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El roam
on January 27, 2021 at 17:22:25 pm

Gee, can you be my lawyer. What fun we will have "splaining" this to the judges.

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Guttenburgs Press and Brewery
on January 27, 2021 at 11:15:56 am

That should read:

One need not like a person to recognize that bringing charges that are not consistent with Procedural Rules, against someone, is unconstitutional. I suppose if we were to take seriously the crimes that are impeachable offenses, “other high crimes and misdemeanors”, for example, allegations of perjury, obstruction of justice and denial of one’s inherent unalienable Right to Life, upon which our inherent Right to Liberty and The Pursuit of Happiness depends, those very Rights our Constitution serves to secure and protect, all those who are subject to impeachment, but deny that a human person can only conceive a human person, thus every son or daughter of a human person can only be, in essence, a natural human person, would be held accountable, for violating Due Process Law.

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N.D.
on January 27, 2021 at 12:32:42 pm

"...given the loyalty of some and craven silence of others in the face of Trump’s gross disregard for the constitutional and legal order."

I'd be curious to hear some instances of Trump's actual disregard for the constitutional and legal order. If anything, he had a poor understanding of the powers of the presidency, but he time and again deferred to and accepted frequently constitutionally questionable court and congressional actions that he could have challenged. His executive orders were generally within the scope of accepted presidential powers. His challenge to the election results was, of itself, legitimate, even if its execution was frequently poor to the point of stupidity - and might not have been necessary had he properly challenged states-level election rules changes earlier. I think the author, despite his otherwise fine explanation of why the impeachment proceedings are wrong, allows too much TDS to enter the article, in wholly unnecessary ways.

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ADM64
on January 27, 2021 at 17:43:05 pm

Spot-on!
I have asked for "specifics" of Trumps "unconstitutional actions" many times and other than some broad bromides which actually belie the facile allegations levied against Trump, I have yet to find anything that is grounded in constitutional law.
Yes, some of Trumps claims were hard to prove; the presentment of those claims were themselves not made in a coherent manner; AND, YES, it is the GOP's fault that they did NOT challenge the electoral shenanigans of numerous State Election Boards, as well as Courts that issued "consent" decrees materially affecting the terms and conditions of the State electoral process. Frankly, I place the blame on the GOP itself and it's time-worn habit of compliance with Democrat initiated / Court mandated but adversarial and disadvantageous decrees covering the electoral process.
As I said earlier in another post:
GOP, Stop Crying. Be a Man and fight!

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gabe
on January 27, 2021 at 13:58:23 pm

Dr. Whirls centers his logic on a view of the past without considering the future. The Senate trial is essential to demonstrate to future demagogues the consequences of inciting unlawful action.

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Winslow P. Kelpfroth
on January 27, 2021 at 17:30:55 pm

Get your facts straight.
What precisely did Trump do to "incite" anything.
Did he not instruct his audience to "peacefully" protest.
And unbeknownst to him AND APPARENTLY YOU AND THE ENTIRE MEDIA, the "riot" began some 12 - 15 minutes BEFORE, YES, BEFORE he completed his remarks.
How can he have incited the "insurrectionists" when they were still peaceably assembled, as is their, AND Trumps, First amendment rights and some small number (as a percentage of the total assemblage) of miscreants were ALREADY engaging in a "riot". Again, it was a RIOT, not an insurrection and a riot that was neither "incited" nor instigated by Trump.
It is "incitement" ONLY because the MEDIA tells us it was so.
It was an "insurrection" ONLY because the MEDIA and the Democrat Party (Oops, that was redundant) tells us it is so.
Trump is a demagogue ONLY because the MEDIA tells us He is one.

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Guttenburgs Press and Brewery
on January 27, 2021 at 18:03:51 pm

Gutti Brew,
Have a few of your Seattle brewski's and get ready for the Marat de Sade days (years actually.) These people are obscenely crazy; I mean psychotically ill, and they are going to get much worse very fast.

Standing on the corner in front of my white privilege house in my white privilege neighborhood, just now, I was wearing my racially-neutral MAGA hat as an act of political defiance, manly courage and personal honor, when a middle-age Person of White Privilege, who looked like a normal middle-age male driving a $80,000 Lexus, pulled up next to me, stopped, leaned toward the passenger window, glared at me for 10 seconds, smirked, shook his fist and drove away.

Bothersome, but not as intimidating as that crazy Indian who chanted and beat his drum in the face of the Covington High School kid.

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Paladin
on January 28, 2021 at 21:43:16 pm

But it was obviously O.K. when Schumer did it ...twice.

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Michael S.
on January 27, 2021 at 15:10:50 pm

Pale Rider,
Clint Eastwood you ain't.

Unlike you, I'm a conservative, not a silly libertarian (whom, on election day, Democrats consider ''useful idiots.")
But I am a lawyer of considerable ConLaw knowledge and with litigation experience, including in the Supreme Court, involving separation of powers and limitations on power. And I had already read extensively on the matter covered by the Never-Trump author, so I knew the right answer and why well before he wrote the article. In not reading the article I missed nothing of substance, but I did decline to dignify the author of such stylistically needless, intellectually demeaning, and factually unfounded personal animus.

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Paladin
on January 27, 2021 at 20:50:35 pm

A couple of thoughts:

1. Regarding Paladin's truncated experience of Professor Wirls's essay, I am reminded of an English teacher who responded to a student's complaints that a term paper was given a poor grade without being read all the way through. The teacher replied "I need only take one bite of a sandwich to know that the mayonnaise has gone bad." Unlike Paladin, I did read the essay all the way through and will concede that he made better use of his time.

It has been several months now that various commenters have noticed the insertion of anti-Trump digressions into essays that are neither clarified nor improved by them. After the fifth or sixth such occurrence it is natural to consider the phenomenon on its own. It may perhaps be that these divagations are included as professional considerations for academics who must persevere in ideologically hostile environments. The anti-Trump language may be a way of assuring academic thought police that, even though the main body of argument is inconsonant with preferred ideologies, the author knows his place. The insertions may function as a form of tribute paid to academic totalitarians for the privilege of having an independent thought. Perhaps these common denunciations are intended as prudent accommodations to an occupying intolerance, a practical alternative to coded messages that the author is terrified of his students, or that the people in the faculty lounge are watching. Or maybe, some people just can't resist the opportunity to take gratuitous shots, either for emotional satisfaction or to improve one's social credit score. Maybe some people think that it is imperative that the world know their opinion of Mr. Trump, even though no one asked.

In the present case, the paragraph regarding Trump's "gross disregard" of something or other adds nothing to the substantive argument. It does not establish the objective bona fides of the author, nor illuminate the issues that he then undertakes to examine. The reader is left to wonder however, if aversion to appearing pro-Trump might not affect the remainder of the essay. One may wonder if the author omits certain things, or fashions his language in the substantive parts of the essay to avoid the perceptions that he apparently felt the need to explicitly disavow. In short, one may wonder if we are getting Professor Wirls's best analysis, or merely the best that is compatible with disliking Trump. I cannot say for certain that Paladin's choice has left him objectively worse off.

2. The author's attempt to address the vagueness and ambiguity of the Constitutional language regarding impeachment by considering it as a "political" issue is not compelling. The term "political" itself is vague and ambiguous. It may refer, among other things, to the staid object of political "science," or to less admirable activities, such as implied by term "political football." The latter includes all manner of dirty tricks, prevarications, slanders and ethical evasions. For example, Representatives Pressley and Waters both advocated physical confrontation with political opponents. Former President Obama did likewise. These comments are certainly political, but it is unclear if they are political in the "acceptable" or "unacceptable" sense. The fact that there are at least two such categories itself implies that analyzing impeachment against some accepted notion of politics will lead to unreliable answers. Stated simply, one conception of politics implies a measure of good faith and the other does not.

I am not one to criticize an author for what he does not write, assuming that he is under no obligation to address what I might find interesting, or even essential. Even so, it does seem somewhat curious that the arguments regarding separating removal from office from disqualification from future office does not mention the case of Alcee Hastings, who was removed, but not barred from future office. He was in fact subsequently elected to the United States Congress. The principle would seem to be that the consequences of impeachment are in fact separable. If you can remove without disqualifying, why can't you disqualify without removing? This I would note is an academic point. The larger issue is whether our political institutions are entitled to a presumption of good faith in invoking the impeachment power, and whether there is any abuse of that power that invalidates the presumption.

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z9z99
on January 27, 2021 at 21:19:46 pm

Most of your reply addresses what I did read in the article, so I will not comment on that. As to your discussion of the motivations for de rigueur Trump disclaimers, we have previously discussed the matter, wherein I stated that among motivations are psychological forces. Tonight, watching my last Tucker Carlson show (getting rid of cable TV in the morning) I learned of "luxury belief," an opinion held by a wealthy or well-to-do person which elevates his social status, said to be a principal goal of the inhabitants of our elite ruling class. This comports somewhat with Radical Chic, a phrase/ concept which Tom Wolfe introduced in the Sixties to mean slumming with the radicals and supporting their causes, like the Black Panthers. But "luxury belief" is not the same, because it seems to involve the notion of exclusivity, as in I have a gold-plated toilet, but not exclusivity which requires the expenditure of lots of money, as did radical chic in funding Black Panthers. Luxury belief is thus democratic, yet elitist, in that it excludes one from the vulgar working middle class.
It may explain some of the knee-jerk Never-Trumpism which, as before, continues to be inexplicable to me except as a matter of self-interest or careerism or as a matter of psychology, e.g., negative transference (scapegoating,) repression, cowardice, group think, status-seeking, or (now tonight) the notion of "luxury belief" as an elitist expression of class distinction and superiority.
(Typed but not read. It's late:)

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Paladin
on January 28, 2021 at 12:10:38 pm

Typo alert:
The first clause of the first sentence of my last reply to Z should read: "Most of your reply addresses what I did NOT read in the article..."

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Paladin
on January 27, 2021 at 21:22:48 pm

In January 1798 the Senate decided by resolution that it had not the authority to try Senator William Blount (Tennessee) because he was had not been a civil officer at the time of his impeachment. That should settle the matter. But no, it doesn't. In 1876, the House impeached and the Senate tried William W. Bellknap. Bellknap resigned the his post as Secretary of War at 10:20 A.M March 2, 1876. After Bellknap's resignation the House went ahead and passed a resolution of impeachment. It was the the same day March 2, 1876, but Bellknap was no longer a civil officer. The Senate Trial began on April 5, 1876. See Hinds' Precedents Volume 3, §§ 2444-2468 for more information. Bellknap was acquitted. Probably the same fate the current respondent.

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Michael Connors
on January 28, 2021 at 09:45:12 am

"I would be very pleased if Trump were disqualified from ever holding any national office."
Gotta have the gratuitous anit-trump comment if one is to retain any credibility among all the other high and mighty professors! Oh yeah, even the judges practice this defensive tactic now (Judge Sullivan)!

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Larry
on January 28, 2021 at 11:26:31 am

I find this argument strained at best, given that a President could simply resign from office at the whiff of Impeachment in the air, to escape potential disqualification, no matter how serious - and if accusations of inciting an insurrection are not a serious matter, it is difficult to imagine what might be - the charges, in the hopes of mounting a later comeback.

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Joe Cogan
on January 28, 2021 at 14:39:59 pm

Did you regard the accusations related to the Russia collusion hoax as serious?

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Michael Bond
on January 28, 2021 at 13:58:38 pm

Z9 raises a rather interesting point in his commentary on "divagations" (absotively luv dat word). Z9 asserts that the fact of the divagation may itself indicate that the essayist, in the energy expended to make such a detour, may be shortchanging the reader and may either advertently or inadvertently omit or obfuscate other critical elements of an argument.
We, myself included, oftentimes simply make reference to the "detour", criticize it and yet never wonder "What has he / she omitted." How much more informative would the essay be, how persuasive could it have been had there not been such a distraction?

2) "The principle would seem to be that the consequences of impeachment are in fact separable. If you can remove without disqualifying, why can't you disqualify without removing?"

The case of Alcee Hastings is informative. But, I must ask Z9 for clarification. Is he implying that since the ONLY two punishments constitutionally permissible as a result of conviction of impeachment that one can also justify either punishment for both an an incumbent Officer AND a former Officer?
This does not necessarily follow. And I think the point is more than "academic" as evidenced by the *politics* presently being performed in the District of Columbia.

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gabe
on January 28, 2021 at 15:05:51 pm

Gabe,

In response to your question, I did not cite the case of Alcee Hastings with the intention of establishing a particular interpretation of the impeachment power. Rather, I was intending to highlight how hazy and subject to political gamesmanship this power is. Professor Wirls writes

It is doubtful, though, that the framers thought an impeachment trial could conclude with an officer being removed without also being disqualified from holding any national office.

Alcee Hastings is a counterexample. Professor Wirls does have the virtue of introducing his essay with skepticism of such "precedent" (precedent as viewed from the current power, "postcedent", if there is such a word, as viewed from the perspective of the Constitution as written) when he remarks "A precedent may be driven by partisan impulses or based on an honest misinterpretation of the Constitution."

The mischief lies not in precedents, or interpretations of the Constitution, or original meaning, or any such. It is rather that the vagueness and uncertainty of the power is subject to abuse in the interests of partisan politics. The criteria for impeachment ("high crimes and misdemeanors") would not pass muster as a criminal law, as any law proscribing them would likely be "void for vagueness." The terms do not give the average citizen notice as to what is being made illegal. This is not remedied by waving off the objection with the claim that impeachment is political, when the term "political" encompasses conduct that is both beneficial and harmful to the Republic, as well as cavalier with the trade-offs between partisan interests and the public welfare.

As an aside, I thought about including this in my original comment but omitted it in the interest of brevity, but Professor Wirls's assertion that

treason and bribery are inherently political, and the “high” in “high crimes and misdemeanors” distinguishes political ones from those defined by ordinary civil and criminal law

leaves unanswered questions in the cases of Randall "Duke" Cunningham and William Jefferson, both of whom were found guilty in criminal proceedings of, among other things, bribery. One doubts that they were thereby political prisoners.

Our political institutions require an element of good faith in the operation of its several mechanisms, including those of impeachment. Our recent history provides ample grounds for skepticism that all of our elected officials understand this.

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z9z99
on January 28, 2021 at 19:36:15 pm

In order for the impeachment trial of Trump to proceed in a Constitutional manner, the Senate must first agree that Trump is in fact the President.

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Chris
on January 28, 2021 at 21:40:41 pm

I wrote this comment last night in reply to El Roam, but it failed to actually post for some reason. It is/was OT for the question of applying the impeachment process to a current or former officer, but may now serve as a supplement to Z9's comment at 15:05 today.

As a non-lawyer I had always taken the phrase "high crimes and misdemeanors" to be essentially an abstract moral judgement against a perceived failure in exercising virtue. A possible or probable violation of a sacred trust. Also, perhaps something with consequences larger than the malefactor's personal aggrandizement. Maybe involving a legal crime as well, but a crime related component not being at all necessary for impeachment.

If we combine several ideas, we might get closer to the Framers thinking on their impeachment criteria.
1) recall Adam's assertion concerning a virtuous and religious people as necessary for the new constitutional republic to be successful.
2) they knew George Washington, a man of impeccable reputation for virtue and integrity, was going to be their first president, presenting a very high bar to which all subsequent office holders might aspire but may not quite ever achieve; a bright moral beacon, as it were.
3) the desire and need to separate the government of, by, and for the people, from the people as well: yes, House representatives elected directly (and at a coverage of no more than 30K citizens per representative), but with senators separated via selection by state legislatures and the president separated by selecting electors to the Electoral College. Thus, the Senators in particular would come closest to being the type of men elected (or selected) for president, closest to being his peer in a jury of his peers. Also, presumably they were considered men of high(er) moral character themselves, thus well (or more) qualified to exercise and render a moral judgement when that is where the impeachment indictment led.

I like your [El Roam's] presentation of the SCOTUS ruling covering Hamilton's views, as to why the Senate was the body chosen for the trial phase. That strikes me as reasonable. But would you grant that the impeachment decision would essentially be political (involving perceptions of moral turpitude and/or violations of "the peoples" trust, justified or not); while the process leading to possible conviction is more clearly judicial, as you describe. But in turn, someone here used the words exoneration or conviction as the two options/outcomes of the trial phase. To my mind "exoneration" has the flavor of surviving a moral test, whereas the usual trial term of "acquittal" retains a measure of escaping a criminal penalty. So, in this context even the trial phase in the Senate might well have a moral element commensurate with a properly developed impeachment.

But today the high purpose of impeachment has been distorted by deeply flawed and misaligned partisan determinations of moral failures, by people whose own moral positions and purity would not bear equal examination.

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R2L
on January 30, 2021 at 18:27:31 pm

One further comment and only on the Alcee Hastings matter: I was amazed that Congress allowed Hastings back into the House and that a constituent failed to sue to block his admission to the House. That should have been challenged on the grounds that Hastings was ineligible to hold the office after his impeachment conviction. I know that removal from office has been considered automatic, while disqualification from future office is thought by some to be discretionary. The distinction makes no sense, and I doubt (but do not know) that in rendering its impeachment convictions the Senate has ever done more than convict, without passing a specific sentence of removal and/or disqualification.

Article I, section 3, clause 7 seems to both specify and limit the punishment, not to make one punishment (removal) mandatory and the other (disqualification) discretionary.

BTW: all the LawProf's recent flatulating about how one can convict a prior president of an impeachable offense forget the matter of jurisdiction. In law jurisdiction over the person and the subject matter are indispensable threshold matters to prosecution, trial and final judgement of a case. To impeach is for the House to propose to remove from office, to try an impeachable offense is for the House and the federal officer to conduct a trial before the Senate, and to convict of an impeachable offense is for the Senate to find the federal officer guilty of the offense charged, thereby removing that federal officer from office (and, I argue, automatically disqualifying him from future high federal office.) Hence, the House cannot impeach unless it has jurisdiction over the person and the subject matter (which re Trump the House possessed,) and the Senate cannot conduct an impeachment trial and remove from office one who is not in office, because it lacks jurisdiction over both the person and the subject matter, because that person is no longer in office.

That absence of jurisdiction may well be why CJ Roberts sat this one out. Trump's lawyers should file in US District Court a motion to dismiss the bill of impeachment. Besides jurisdictional grounds, there are the constitutional matters of whether conviction would constitute a bill of attainder and whether the Senate can try the case without the CJ presiding.

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Paladin
on January 31, 2021 at 11:52:27 am

A useful source of inquiry and analogy to the impeachment trial of a president after he has left office is courts martial. Is it lawful to 'court martial" and try a former military officer before a court martial after the officer has left the military? Add to that scenario to make it closer to the Trump case the assumption that while the officer was still in the military a military panel of inquiry had been convened and had recommended court martial of the officer, but the court martial had not yet been convened before the officer was retired from service by virtue of mandatory age restrictions. Can he still be formally charged with military infractions and then tried before a court martial?
It would seem, just as in the impeachment scenario, that the military would no longer have jurisdiction of the officer and the subject matter (military infractions.) An exception may exist for the post-service prosecution and trial of crimes committed while in the military or of infractions that affect the honors and benefits incumbent upon normal retirement. I do not know the answer, but it may well be that by statute those crimes and infractions may still be subject to military jurisdiction even after retirement (or resignation.) There is no such post-service extension of the Senate's jurisdiction to try a federal officeholder after he leaves office.

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Paladin
on February 01, 2021 at 13:53:52 pm

You make some good points here. I have seen equally valid points made on the "other side" as well.

The beauty of our government is that we don't have to solely rely on history as a guide but can chart our own course when we are dealing with such conundrums. So rather than argue over who's interpretation of the past is most accurate, maybe we should consider how we want the future to be.

In the present, actions which would have taken months or years to complete can be accomplished in hours or days. For example, among other things, a lame-duck President could turn a small country into a sheet of glass in a matter of hours. To decide that We the People have no recourse to hold that person accountable, to me, doesn't make much sense. Given the greater ability of a lame-duck President to do harm, I think that we should accept the broader interpretation and set a precedent to make it more difficult for any future President to do something horrible and walk away, not just unscathed, but eligible for future office.

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kevin
on February 06, 2021 at 13:59:39 pm

As another commenter mentioned, I have been searching for a reasoned response on why the impeachment is unconstitutional and until now have not found one. Everything is platitudes and baseless opinions, so your article was a breath of fresh air.

In reading your article I found myself taking exceptions to many of your statements based on the research I have been doing and the brief written by the House managers. I found that brief, much like yours, to be based on fact and well cited. I have gone to many of the citations and see how they arrived at their position, as I see how you arrived at yours.

I arrive at the conclusion that it leaves the resulting discussion in a state of ambiguity. Merriam Webster defines ambiguity as "a word or expression that can be understood in two or more possible ways". I believe that is where we are.

So what do we do about ambiguity from a legal view. We attempt to interpret intent. Interpretation Acts lay down that every Act shall be deemed remedial and shall accordingly receive such fair, large and liberal (Not that meaning of liberal) construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

The "Golden Rule" (set out by Lord Blackburn in 1877) states ""In construing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further."

If we determine we cannot try a former President, we leave ourselves in an absurd and repugnant position where the person can attempt to extend their term or other activities which would violate the constitution with no consequences! We cannot allow that!! We must apply the :Golden Rule" detailed here.

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Alfred C Young
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