What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.

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.

To see how that might happen, let us begin (as Xena will) with the constitutional text, particularly Article II, §4, which provides:

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.

This is the only place in the Constitution that references the category of persons subject to impeachment. It does not expressly say that the named officials are the only persons who can be impeached, nor does it expressly address when they can be impeached. For that matter, it does not explicitly say that these officials (or anyone else) can only be impeached for the offenses listed. Literally it merely specifies the consequence if one of the named officials is convicted of one of the named offenses. Thus, for example, one could argue that this provision does not prevent Congress from impeaching and convicting a state official for a high crime or misdemeanor (or an offense that is not a high crime or misdemeanor).

Nonetheless, it is widely if not universally accepted that this provision implicitly limits both the category of persons subject to impeachment and the category of offenses for which they can be impeached and tried. Assuming that Xena agrees, the textual problem becomes clear. Although Trump was clearly “the president” at the time he committed the offense charged by the article of impeachment (which, Xena has no doubt, would constitute a high crime or misdemeanor if proved) and at the time the House voted to impeach him, he is not (at least arguably) “the president” now or at the time the Senate began his trial. The term “the president” as used in the Constitution generally means “the current president” (which is why former presidents cannot, say, issue pardons). Moreover, the requirement that the president (or other impeached official) be removed from office upon conviction seems to underscore that the impeachment clause in Article II is referring to incumbents, not to former officeholders.

James Wallner, a respected scholar of the Constitution and Senate, lays out the textual case against late impeachments here, and he argues that nothing in the debates over impeachment at the Philadelphia Convention point to a different conclusion. Again, I don’t agree with this conclusion (I pointed out some reasons why in a response to Wallner on twitter) but it is an argument that a conscientious senator like Xena could find persuasive.

It should be stressed that the differences between Wallner and me (and most others in our respective camps) are actually pretty narrow. Both of us would agree that the Constitution does not expressly rule late impeachments in or out, but he draws a stronger inference against late impeachments from the Constitution’s text than I would, while I draw a stronger inference than he does in favor of late impeachment from preconstitutional impeachment law and practice in England, the colonies, and the states. Moreover, we would both have to acknowledge that the founding generation lacked a clear consensus on late impeachments because the issue was debated during the impeachment proceedings against William Blount in 1798, which did not resolve it. But see David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 277-78 & n. 336 (1997) (suggesting the Blount proceedings indicate show that no one took the argument against late impeachments very seriously); Turley, 49 Duke L. J. at 52 n. 221 (same).

Assuming that the constitutional text and preconstitutional history leave the issue of late impeachments something close to a toss-up, I would point to two factors as key to resolving the issue in favor of late impeachments: (1) historical practice and precedent, particularly the Senate’s ruling in the Belknap trial and (2) the practical implications of banning late impeachments from the standpoint of the purposes impeachments are to serve. With regard to the former, there is certainly room for debate about the strength of the Belknap precedent. See Michael Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 52 (1996) (“The precedential value of Belknap’s impeachment is uncertain.”). And opponents of late impeachment can point to the fact that the Senate has seldom tried and never convicted a former officeholder.

The latter, however, strikes me as more difficult to overcome. If the issue of late impeachments is ambiguous on the constitutional text, it should be “triable by its consequences,” as Madison puts it. And the rationale for allowing an officeholder to avoid the penalty of disqualification (which is designed to protect the public from the danger of the offender regaining office in the future) simply because he resigned or his term of office expired does, I must admit, escape me. Opponents of late impeachment, to the extent they address this issue, suggest that disqualification is only a secondary purpose of impeachment, but even if true this does not strike me as a very powerful response. A possible rejoinder would be that if the former official were to regain office he could be impeached and/or tried at that point, but I have not seen anyone make that argument. (And it seems like a second-best alternative considering the spoliation of evidence that could occur).

Nonetheless, the issue is close enough that Xena could decide that the Senate lacks jurisdiction to try former officeholders. Moreover, even if she is inclined to agree with me on the broader issue, she may be troubled by an issue which is specific to the Trump impeachment. If late impeachments are permitted, she may reason, this must mean that Trump is “the president” for purposes of Article II, §4. This would make sense if, as Belknap impeachment manager Hoar argued, the terms used in that impeachment clause refer to officeholders “at the time of the commission of the offense” or, put another way, describe the category of persons who can commit impeachable offenses,  rather than the category of persons who can be impeached or tried for impeachable offenses. See Thomas Berry, Late Impeachment: An In-Depth Account of the Belknap Trial (Part One) (Feb. 4, 2021).

If this is so, however, it seems logical to conclude that Trump is also “the president” for purposes of the impeachment clause of Article I, which provides that “When the President of the United States is tried, the Chief Justice shall preside.” (The Belknap impeachment managers, incidentally, conceded that this was a possible implication of their argument, though it was not necessary to decide in that case.)  Yet the chief justice is not, of course, presiding at Trump’s second impeachment trial. Senator Xena could reasonably conclude that this is a fatal jurisdictional defect in the trial, even if late impeachments are generally permissible.

The Trump House managers argue that there is no need for the chief justice to preside because the principal rationale for this exception is to avoid the conflict of interest that would occur if the vice president (next in line to the presidency) were to preside at the trial of a sitting president. This seems to me to mirror the error of the argument about disqualification. Maybe this conflict of interest is the primary purpose of the chief justice presiding, but ensuring the fairness (and perception of fairness) of a trial of exceptional public importance also seems like an important purpose. Cf. The Federalist No. 65 (Hamilton) (suggesting that “making the chief justice of the supreme court the president of the court of impeachments” provides some of the guarantees of procedural fairness and judicial disinterestedness that would have come from uniting the supreme court and Senate as a single court of impeachment). For more on the arguments regarding the arguments for and against the chief justice presiding at the trial, see Professors Vikram Amar and Jason Mazzone here.

Finally, even if it is true that the chief justice need not preside at the trial of a former president, Xena may be troubled by the fact that the House failed to promptly transmit its article of impeachment to the Senate. Had it done so, Trump’s lawyers have argued, Trump would still have been president and therefore entitled to the constitutional protection of the chief justice. Just as an impeached officer should not be able to avoid trial by resigning, the House should not be able to prevent the chief justice from presiding by withholding the article of impeachment until the president’s term expires.

All of which can explain how Xena might have come to vote against the proposition that the Senate has jurisdiction to try former president Trump for the offense in question. But does that require her to vote for acquittal?

Perhaps not. Xena recognizes that the Senate is a court and that part of a court’s function is to act in a predictable and consistent manner. There are many legal issues like late impeachment over which reasonable people can disagree. Yet if a court could never settle such issues, its decisionmaking would swing wildly depending on who happened to be a member of the court at any particular time. Thus, ensuring respect for the rule of law and for the Senate as a court of impeachment, two values which Xena has sought to advance in her deliberations on this issue, requires that the question of late impeachment be settled at some point. Xena may therefore conclude that the Senate having ruled on the jurisdictional issue in favor of late impeachments, it is her duty to proceed to the merits of the case and vote on whether the former president is guilty of high crimes or misdemeanors.

Moreover, she may be fortified in this decision by the fact that the former president, if convicted, will have a legal avenue to challenge the Senate’s ruling on jurisdiction. As Trump’s lawyers noted in their trial brief, the issues of the Senate’s jurisdiction and whether the chief justice must preside are justiciable. While Xena believes that the Senate has a duty to decide constitutional issues independently of the courts, the availability of judicial review on these questions should weigh in favor of proceeding to a consideration of the merits.

Of course, she may alternatively conclude that she should remain consistent in her view that jurisdiction does not exist and therefore cannot vote for conviction. That, however, does not mean she must sit like a potted plant until the trial concludes and then vote for acquittal. On the contrary, she may conclude that her role in the court of impeachment requires much more.

For one thing, although Xena has reached her conclusion on jurisdiction based purely on her views of the law and her duty as a senator sworn to do impartial justice, that does not mean that she is under the illusion that her colleagues have done likewise. Xena is conscientious, not stupid. She is well aware of the fact that almost 90 percent of Senate Republicans have reached the conclusion on jurisdiction that conveniently allows them to avoid pronouncing judgment on the actions of a president of their own party. She also knows that an even smaller percentage of House Republicans supported impeachment when jurisdiction was not even an issue. To allow the Senate to vote on near party lines about what the public will perceive as a legal technicality is to encourage it to perceive the Senate as a lawless institution. That is something Xena wants to avoid.

Fortunately, she has options. She can ask for a special verdict, in which senators would vote separately on jurisdiction and the merits. She could provide a written statement explaining her reasoning on jurisdiction and making clear that she is in no way suggesting Trump’s conduct was not impeachable; she can ask her colleagues to sign on or issue their own statements. She could abstain from voting on conviction, as apparently some senators did in the Belknap trial. She could move that the Senate resolve that the article of impeachment could be tried should Trump again assume an impeachable office. She could sponsor a resolution censuring Trump for his conduct. She could sponsor legislation to establish an investigatory commission to gather evidence and issue a report on the events of January 6 and the conduct of the former president and his allies which led up to them.

In short, while a vote against late impeachment does not prove that a senator is unconscientious, there are plenty of other indicia by which the public can make that judgment.