There is a precedent for trying a former government official, established 145 years ago


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The narrative that is forming among those who do not want a Senate impeachment trial for former President Donald Trump points in the direction of “He is not in office. What’s the point ?

Others go so far as to claim that carrying out an impeachment trial for Trump now that he is no longer in office is unconstitutional.

“I think the ex-president’s rhetoric that day was inflammatory,” said Senator Josh Hawley, R-Mo., Who was also criticized for his role in the January 6 violence. Hawley was one of the instigators of opposing the traditionally ceremonial count of Congress. “I think it was irresponsible. I think it was wrong. But I think this impeachment effort is, I mean, I think it’s patently unconstitutional. It’s a really, really, really precedent. dangerous.”

It is not clearly unconstitutional. And there is already a precedent for the Senate to judge an official after he leaves office. It happened 145 years ago, and impeachment officials in this 19th century case believed that by holding this trial no one would question again whether it was allowed.

Yet even a more moderate senator, like retired Sen. Rob Portman, R-Ohio, sided with 44 other Republicans on Tuesday in an unsuccessful attempt to dismiss the lawsuit on the basis that Trump is a mere citizen.

“I have been very clear that former President Trump bears some responsibility for what happened on January 6 through his words and actions,” Portman said in a statement after the vote. “I will listen as a juror, but as I said, I have questions about the constitutionality of having a Senate trial and the impeachment of someone who is now a private citizen.”

Republicans are relying, at least in part, on a professor who appears to disagree with himself – now arguing it’s unconstitutional, but writing the opposite 22 years ago, after a Democrat was impeached.

So let’s dive into the question of constitutionality, as well as that 1876 case that Democrats began to cite as evidence that trying a president after he or she leaves is well within the bounds of what the Senate can do.

The constitutional question

Trump’s presidency has put into practice what were previously esoteric constitutional questions, the makings of hypothetical “what if” scholarly articles.

These events are rare. Only 20 people in US history have been indicted – 15 judges, a US senator, a cabinet member and three presidents. The Senate convicted only eight, all federal judges.

Only two presidents had been impeached before Trump; a president had never been impeached twice before Trump; and no president has ever been tried by the Senate after leaving office. President Richard Nixon resigned before the House voted on articles of impeachment filed against him. The Chamber then closed the case.

But is the Senate allowed to initiate an impeachment trial after someone leaves office? What does the Constitution say about this, and what did the Framers think?

There is certainly a debate about this, as NPR’s Nina Totenberg explored this month. But the prevailing consensus is that it is within the purview of the Senate, especially since it voted on the very subject itself in 1876 and said, yes, it had jurisdiction. This vote was not without controversy, however.

Let’s start with what the Constitution says:

“The President, Vice President and all civilian officers of the United States will be removed from their posts on indictment… and conviction. “

Some Tories point out that language and say it means impeachment only applies to current office holders – and that the primary purpose of impeachment and conviction is to remove someone from office.

But this is not the view of the preponderance of scholars. This is taken from a Congressional Research Service legal briefing on January 15, two days after Trump’s impeachment and in anticipation of the likelihood of the Senate going to an impeachment trial after Trump’s term ends:

“Although the text [of the Constitution] is open to debate, it appears that most academics who have examined the matter closely have concluded that Congress has the power to extend the impeachment process to officials who are no longer in office. “

There are two penalties for impeachment: Impeachment is one, but barring someone from re-occupying public office is another option.

Here is article 1, section 3, clause 7 (emphasis added):

“Judgment in cases of impeachment shall not extend beyond the dismissal of office and the prohibition to hold and enjoy an office of honor, trust or profit to the States- United: but the condemned party will nevertheless be responsible and subject to the indictment, trial, judgment and punishment, according to the law. “

In light of this, there is good reason to believe that the impeachment applies to former office holders.

“If impeachment does not apply to former public servants,” the CRS report notes, “then Congress could never bar an official from holding office in the future as long as that individual resigns first.” “

There is also evidence that delegates to the Constitutional Convention agreed that officials could be dismissed after resigning, according to the CRS report. And he notes: “This deal also follows certain pre-Constitution state constitutions, which allowed for the dismissal of officials after leaving office.”

There is in fact the example of a former British governor, Warren Hastings, who was deposed by the British government two years after leaving office. He was tried for corruption and was eventually acquitted, but it all happened at the time of the Constitutional Convention.

His impeachment “was expressly noted by delegates without expressing disapproval of the schedule,” according to the CRS report. “While the Framers were aware of UK and state practices of impeaching former public servants, academics noted that they chose not to explicitly rule out impeachment after an official has left office.”

Former President John Quincy Adams, who was not a founding father but was the son of one, also endorsed this view.

“I stand, as long as I have the breath of life in my body, liable to be indicted by this Chamber for everything I have done while I have held public office,” he said. he declared in 1846, after leaving office.

The CRS report also highlights another important point: Impeachment offenses are not necessarily those for which a politician can or will be tried by the justice system:

Alexander Hamilton noted that the impeachment offenses were “political, as they relate primarily to injuries inflicted immediately on society itself.” For example, Congress removed federal judges for misconduct and corruption who were not not necessarily criminal. One scholar notes that impeachment after an official leaves office is important because it “achieves offenses and provides for penalties that the criminal process” does not. “

Even the professor the Republicans had lunch with on Tuesday, Jonathan Turley of George Washington University, who now claims that “the impeachment of a president is the primary goal of such a trial,” said something very different he said. 22 years ago, as the University of Texas pointed out. law professor Steve Vladeck.

Relying on the 1876 Senate impeachment trial of William Belknap – who was Secretary of War under President Ulysses S. Grant and who was tried after his resignation – Turley argued that the Senate “was right to consider that dismissals had historically extended to former public servants, such as Warren Hastings. “

He wrote in the Duke Law Journal that a trial of a former public servant would have a “chilling effect on the executive branch” and uphold the “core values ​​of a society” even if the person was not convicted and ” even if the only sanction is disqualification from the future function. “

It was in 1999, the year after Democratic President Bill Clinton was impeached.

Who was William Belknap?

Belknap was a former Iowa state lawmaker who went on to become a Civil War hero and Union Army general. Grant made him his secretary of war, a post he held for eight years.

But Belknap became known in Washington instead for his high society life and lavish parties and spending, according to the historic Senate Office.

No one knew where the money was coming from – until they did.

Belknap was making $ 8,000 a year, about $ 200,000 in today’s money. It’s a very good salary, but not enough to support the kind of lifestyle Belknap was leading.

As it turned out, Belknap was on point. Someone he installed to run a military trading post in Indian Territory has promised bribes for the appointment. And he delivered.

Belknap was making some $ 20,000 per quarter from the program, 10 times his salary, for the current equivalent of about $ 2 million per year.

When Congress found out, articles of impeachment were filed that included “despicable prostitution from his high office to his desire for private gain.”

In an effort to avoid impeachment, “Belknap rushed to the White House, handed in his resignation to Grant and burst into tears,” notes the Senate historian’s office.

It did not work. The House removed him later that day. When the case was sent to the Senate, Belknap’s lawyer argued that he could not stand trial because he was now a private citizen.

House impeachment officials retorted that all the accusations stemmed from what Belknap did when he was Secretary of War.

After three days of hearing arguments on the matter and two weeks of secret deliberations, the Senate voted by 37 votes to 29 that Belknap was “liable to be tried by impeachment for acts committed as Secretary of War. , despite his resignation from the said function before his dismissal “.

In the end, a majority of senators voted to condemn Belknap, but it was below the necessary two-thirds. Nearly two dozen senators who voted for acquittal expressed their belief that the Senate lacked jurisdiction. Only three said their vote was due to evidence.

In a report after the case, House impeachment officials said those who voted for the acquittal because they did not believe the Senate had the right to try the case had shown that they “refused to be governed by the deliberate judgment of the majority”.

Ultimately, however, they believed it was important to get the case through because it would set a precedent that just because someone had left office did not mean the person was safe from harm. consequences of Congress.

“It has thus been established that people who have held civilian office in the United States are unassailable and that the Senate has jurisdiction to judge them,” they wrote.

They said the effort was worth “infinitely more than all the time, labor and expense of the protracted trial ended by yesterday’s verdict.” [Copyright 2021 NPR]

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