Month: February 2021

As you know, on February 9 the Senate voted 56-44 to proceed with the second impeachment trial of Donald Trump, finding that the former president “is subject to the jurisdiction of a court of impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office.” This allows the trial to proceed, although some argue that there is no reason to continue since it is clear there cannot be enough votes to convict. After all, if a senator has concluded that there is no jurisdiction over the defendant, she logically cannot convict (or so it is argued).

The same issue arose in the 1876 trial of former secretary of war William Belknap, who resigned from office just hours before the House impeached him for corruption. The Senate then debated whether it had jurisdiction to try the articles of impeachment against “William W. Belknap, late Secretary of War.” By a vote of 37-29, almost exactly the same percentage breakdown as in Tuesday’s vote in the Trump trial (by my calculation the Belknap majority was .00060606 larger), the Senate voted in favor of jurisdiction. See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke L. J. 1, 55 (1999).

Belknap’s lawyers then argued that the trial should not proceed. They contended the jurisdictional vote showed the respondent had been “substantially acquitted” because more than one-third of the Senate had by their votes “declared and affirmed their opinion to be that said plea of said respondent . . . was sufficient in law to prevent the Senate . . . from taking further cognizance of said articles of impeachment.” 3 Hinds’ Precedents §2461. The Senate, however, rejected this motion to dismiss and proceeded to conduct a lengthy trial (which nonetheless resulted in Belknap’s acquittal almost entirely based on the jurisdictional issue).

There are two reason why the Senate, as Professor Turley put it, “wisely rejected” Belknap’s effort to stop the trial. See Turley, 49 Duke L. J. at 55 n.240. First, even if Belknap’s acquittal were inevitable, there is value in conducting an impeachment trial that the Senate has determined it has the constitutional authority to conduct. As House manager George Hoar (later a prominent senator) argued in the Belknap case, holding a trial has value in itself, allowing for the airing of charges by “any responsible accuser” and the conduct of a “judicial trial” or “inquest” with a “process for the discovery of concealed evidence.” See Thomas Berry, Late Impeachment: An In-Depth Account of the Arguments at the Belknap Trial (Part IV) (Feb. 7, 2021). An impeachment trial can demonstrate the guilt or innocence of the accused, expose official misconduct, and serve as an affirmation of the standards of conduct expected for those entrusted with public office. See Turley, 49 Duke L. J. at 56 (explaining that “a trial of Belknap was needed as a corrective political measure” and “[r]egardless of outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government”).

Second, it is not inevitable (at least in theory) that a senator who votes against jurisdiction will also vote for acquittal. To see why, let us look at the matter from the perspective of our hypothetical conscientious senator, Xena. Senator Xena has sworn to do impartial justice in the impeachment trial of former president Trump and that is what she intends to do. Thus, she will approach the question of whether the Senate has jurisdiction to try a former president without fear or favor, uninfluenced by any constitutionally irrelevant considerations.

You may believe that such a senator could reach only one result, but most scholars who have studied the question (particularly those who did so before January 6) would acknowledge that it is, as Professor Kalt observed in his 2001 article, a “close and unsettled question.” I have made clear my view (which even Senator Cruz now shares) that the stronger argument favors late impeachment, but for purposes of this exercise we will assume Xena reaches a different conclusion. Continue reading “What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.”

Writing in the Wall Street Journal Sunday, Chuck Cooper argues that the Constitution permits late impeachments, i.e., the impeachment and trial of former officials who are accused of committing high crimes or misdemeanors while in office. Cooper acknowledges that forty-five Republican senators appear to have taken a different view by voting in favor of Senator Rand Paul’s point of order challenging the constitutionality of former President Trump’s impeachment trial, but he explains that “scholarship on this question has matured substantially since that vote.”

This remark occasioned some Twitter snark (o.k., it was from me) seeing as how the vote took place on January 26, which doesn’t leave much time for scholarship to have “matured.” It was pointed out to me that at least one useful piece of scholarship has emerged in that time, namely Thomas Berry’s four-part series on the question of late impeachment in the Belknap case. (Berry does not take a position on the issue, but very helpfully summarizes the relevant arguments on both sides).

For the most part, though, what has happened is that scholars have come forward to take positions for or against (mostly for) late impeachments, without necessarily adding to the actual scholarship on this issue. Having ten law professors or prominent lawyers make the same argument does not really make it any stronger, particularly when made in the context of a heated political dispute. Nonetheless, it can be important for senators who are looking for guidance or cover.

Republican senators (who are the main audience here) are naturally going to gravitate toward experts who are conservative/originalist, prominent constitutional lawyers, and/or well-known to them and their colleagues. Cooper qualifies on all of these counts. He is a highly prominent and successful constitutional litigator, and he has strong ties to Senate Republicans. (For example, Ted Cruz was one of the first associates Cooper hired when he formed his own law firm back in the 1990s.)

Of course, senators like Cruz, Josh Hawley and Mike Lee consider themselves to be fully qualified to make their own constitutional judgments, but it will be hard for them to deny that the issue of late impeachments is, at the very least, a close question when so many prominent conservative/libertarian legal scholars have come down in pro-late impeachment camp. These scholars include former federal judge Michael McConnell, who argues that the Constitution allows former officials to be tried in the Senate so long as they were impeached while in office, as well as many others (Andrew McCarthy, Ramesh Ponnuru, Dan McLaughlin, Keith Whittington, Jonathan Adler, Michael Stokes Paulsen, Ilya Somin and Steven Calabresi, to name a few), who argue for the constitutionality of late impeachments generally.

Of course, there are legal experts who have come out against late impeachments. Perhaps the most prominent is Phillip Bobbitt, a well-known constitutional scholar (and, it should be noted, someone who is not an originalist and is not associated with Trump or conservative politics). Another is J. Michael  Luttig, a well-respected conservative former judge (for whom, incidentally, Cruz clerked). Conservative legal scholars John Yoo and Robert Delahunty have also written a rather overstated originalist argument against the constitutionality of late impeachments. Jonathan Turley, who had written favorably of late impeachments in 1999, has now moved to a position of neutral, leaning against. And two characters from Trump’s last impeachment, Alan Dershowitz and John Bolton, have weighed in against late impeachments. There undoubtedly are other legal experts (however broadly that term is construed) who have expressed similar views, though the ranks are surely much thinner than the pro-late impeachment side.

As noted, numbers alone do not establish who is correct. Moreover, Republican senators who are inclined to oppose impeachment may discount the views of the pro-late impeachment experts on the grounds that they have been influenced by the atrocious nature of Trump’s offense and that (as mentioned in my last post) the facts of the case seem like they were dreamed up by a law professor to support late impeachment. Hard cases make bad law and all that.

Whether this is fair or not, it is worth specifically noting the views of those who have thought and written about this question prior to January 6. Whittington, McCarthy and Turley are in this category, and they all had favored late impeachment. As mentioned in my last post, in fact, while relatively few scholars had addressed themselves to this question even in passing, the ones who did seemed to overwhelmingly support the constitutionality of the practice. One important but partial exception is Justice Story, about whom more later.

To my knowledge, however, the only scholar who has truly looked at this issue in depth and outside the context of a particular controversy is Professor Brian Kalt. (Kalt specializes in odd constitutional issues, including the 25th amendment and late impeachments, and boy did he hit the jackpot with the Trump administration.) If you want an exhaustive and even-handed discussion of the arguments for and against late impeachment, you need to read Kalt’s 2001 article on the subject, in which he concludes that while the “question of late impeachability is close and unsettled,” the better view is that “Congress can pursue late impeachments, based on an analysis of the text, structure, historical underpinnings, and precedent of the Constitution’s impeachment provisions.”

All of which brings me to Senate Resolution 16, which is the brief resolution that the Senate adopted on January 26 in connection with “the article of impeachment against Donald John Trump, President of the United States.” That the resolution refers to Trump in this manner reflects only, I assume, the fact that the article of impeachment is addressed to Trump as president because, of course, Trump was indeed president at the time the House impeached him. Somewhat more interesting, though, is that the resolution states it was adopted “pursuant to rules III and IV fo the Rules and Practice When Sitting on Impeachment Trials,” which are the Senate’s standing rules on impeachment. Rule IV deals exclusively with presidential impeachments and provides that the chief justice shall preside. Unless the reference to Rule IV was a mistake or oversight, it seems that the Senate is still leaving open the possibility that this will be conducted as a presidential impeachment trial. Continue reading “Late Impeachments, Senate Resolution 16, and Some Relationships”