As the Senate trial of Donald Trump nears, the defense is coming into view. It appears that most Senate Republicans will not defend Mr. Trump’s conduct around the Jan. 6 Capitol siege. Instead, they will rally around an argument about the chamber’s constitutional powers and the supposedly dangerous consequences for our politics if the Senate tries a “late impeachment.”
This argument is built on two closely connected representations, and Senator Rand Paul previewed them in his recent constitutional objection to “late impeachment.”
The first, in Mr. Paul’s words, is that “impeachment is a tool to remove someone from office. That’s it.” The Senate lacks the power to try an impeached president, once out of office, to determine if he is guilty of the charges the House has levied against him.
The second, Mr. Paul and others argued, is that Mr. Trump is now a “private citizen,” and so any action against him could serve no purpose other than revenge.
So less than a month after the events of Jan. 6, the impeachment process might be foundering on the remarkable claim — one that some senators seem to have adopted disingenuously so that they can avoid a defense of Donald Trump’s action and pose instead as guardians of the Constitution. It is the claim that a president can escape the consequences of egregious, impeachable conduct, and in particular disqualification from future office, so long as the Senate runs out of time to try the case before the end of his term.
This Republican argument wholly misconstrues the text, history and structure of the Constitution’s impeachment clause. It is a mistake to minimize impeachment’s broader objectives by suggesting that removal from office was somehow its only or primary function.
The power to impeach specifically provides for two decisions: impeachment and conviction, resulting in removal, and then disqualification from holding office. As drawn from the English practice, and reflected in state constitutions at the time, both these actions were understood to serve the overall purpose of public accountability for egregious abuses of public office.
Indeed, several state constitutions at the time of the federal Constitution’s writing permitted impeachment only after public figures had left office. Public accountability and disqualification were the purposes of impeachment; the Constitution’s addition of removal from office was an expansion on these provisions.
The argument focused on Mr. Trump’s status as a former president is misguided and dangerous. When impeached, he was in office. Moreover, it is highly doubtful that the framers intended the impeachment clause to give the president free rein to commit impeachable offenses in the closing months of his term.
In any case, the Senate always decides on disqualification after the offender is a “private citizen,” since that is what he becomes upon conviction of an impeachable offense. The Constitution does not even specify that this second vote on disqualfication must be immediate. The Senate could vote weeks later, after deliberation and debate, well into the former president’s “private” life.
Still more fundamental: This “late impeachment” argument fails to grasp the constitutional framework within which the question must be considered. The Federalist Papers made plain the framers’ preoccupation with protections against the demagogue, the “unworthy candidate” of “perverted ambition” who practices “with success the vicious arts, by which elections are too often carried.” The provision for “disqualification to hold and enjoy any office of honor, trust or profit” was one of many instances of constitutional checks against popular passions that could lead to the election of officeholders who would threaten to subvert the Republic.
No basis exists for claiming that the drafters of the Constitution intended to leave presidents who have demonstrated danger to the Republic to seek the position again based on a mere happenstance of timing: that a Senate trial cannot take place after the president has been voted out of office.
Mr. Trump is being tried for conduct that the Constitution expressly singles out a basis for disqualifying someone from office. Section 3 of the 14th Amendment disqualifies from federal or state office anyone who has “engaged in insurrection or rebellion” against the United States or given aid and comfort to them. Mr. Trump has been impeached for taking such actions for the express purpose of promoting opposition to the transfer of power to his duly elected successor.
The House voted this impeachment with urgency, intending to have the Senate try, convict and remove Mr. Trump to disable any further maneuvers by him to retain office. This has hardly been a generalized political “witch hunt” against vague offenses.
Moreover, Congress holds a similar power in its ability to police its own ranks. Under Article 1, Section 5 both the House and Senate may expel a member by a vote of two-thirds. Neither has regularly exercised this power, but of the 15 Senate expulsions, 14 involved members who had supported the Confederacy during the Civil War. The House also expelled three members for support of the secession.
Enough Republican senators may adopt this argument against “late impeachment” to block conviction and the ensuing vote on disqualification. But the moment should not pass without calling out in clear terms the damaging constitutional precedent that this outcome will produce.
The Republican senators are effectively seeking to establish a “loophole” in the critical constitutional mechanism for holding presidents accountable for high crimes and misdemeanors — in this case, a trial and decision on disqualification of a former president who, while in office and as set forth in the articles of impeachment, “gravely endangered the security of the United States and its institutions of government, threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of government.”
Bob Bauer, a former senior adviser for the Biden campaign, is a professor of practice and distinguished scholar in residence at New York University School of Law and an author, with Jack Goldsmith, of “After Trump: Reconstructing the Presidency.”
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