The forming narrative among those who don't want a Senate impeachment trial for former President Donald Trump is along the lines of, "He's out of office. What's the point?"
Others are going so far as to claim that conducting an impeachment trial for Trump now that he's out of office is unconstitutional.
"I think the ex-president's rhetoric on the day was inflammatory," said Sen. Josh Hawley, R-Mo., who was criticized for his role in the Jan. 6 violence as well. Hawley was one of the instigators of objecting to Congress' traditionally ceremonial electoral vote counting. "I think it was irresponsible. I think it was wrong. But I think that this impeachment effort is, I mean, I think it's blatantly unconstitutional. It's a really, really, really dangerous precedent."
It's not blatantly unconstitutional. And there is already precedent for the Senate trying an official after he has left office. It happened 145 years ago, and the impeachment managers in that 19th-century case believed that by holding that trial no one would again question whether it was allowed.
Still, even a more moderate senator, like retiring Sen. Rob Portman, R-Ohio, sided with 44 other Republicans on Tuesday in a failed attempt to dismiss the trial based on Trump being a private citizen.
"I've been very clear that former President Trump bears some responsibility for what happened on Jan. 6 through his words and actions," Portman said in a statement after the vote. "I will listen as a juror, but as I have said, I do have questions about the constitutionality of holding a Senate trial and removing from office someone who is now a private citizen."
Republicans are relying, at least in part, on a professor who appears to be at odds with himself — arguing now that it's unconstitutional, but writing the opposite 22 years ago, after a Democrat had been impeached.
So let's dive into the constitutionality question, as well as that 1876 case that Democrats have begun citing as evidence that trying a president after he leaves office is well within the bounds of what the Senate can do.
The constitutional question
Trump's presidency made practical what were previously esoteric constitutional questions, the stuff of hypothetical "what if" scholarly journal articles.
These events are rare. Only 20 people in U.S. history have ever been impeached — 15 judges, a U.S. senator, a Cabinet member and three presidents. The Senate has convicted only eight, all federal judges.
Only two presidents had ever 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 House then dropped the case.
But is the Senate allowed to take up an impeachment trial after someone leaves office? What does the Constitution say about it, and what did the Framers think?
There is certainly some debate about it, as NPR's Nina Totenberg explored this month. But the prevailing consensus is that it is within the scope of the Senate, especially considering it voted on the very subject in 1876 and said, yes, it did have jurisdiction. That vote wasn't without controversy, though.
Let's start with what the Constitution says:
"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment ... and Conviction."
Some conservatives point to that language and say it means impeachment applies to only current officeholders — and that the principal goal of impeachment and conviction is to remove someone from office.
But that's not the view of the preponderance of scholars. This is from a Congressional Research Service legal briefing on Jan. 15, two days after Trump's impeachment and in anticipation of the likelihood that the Senate would take up an impeachment trial after Trump's term was up:
"Though the text [of the Constitution] is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office."
There are two penalties for impeachment: Removal from office is one, but barring someone from holding public office again is another option.
Here's Article 1, Section 3, Clause 7 (emphasis ours):
"Judgment 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
Given that, there's good reason to believe impeachment applies to former officeholders.
"If impeachment does not apply to former officials," 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 the delegates at the Constitutional Convention accepted that officials could be impeached after stepping down, according to the CRS report. And it notes, "This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office."
There is actually an example of a former British governor, Warren Hastings, who was impeached by the British government two years after he left office. He was tried for corruption and was eventually acquitted, but all of it happened at the time of the Constitutional Convention.
His impeachment "was noted expressly by the delegates without expressing disapproval of the timing," according to the CRS report. "While the Framers were aware of the British and state practices of impeaching former officials, scholars have noted that they chose not to explicitly rule out impeachment after an official leaves office."
Former President John Quincy Adams, who wasn't a Founding Father, but was the son of one, also subscribed to this view.
"I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office," he said in 1846, after he left office.
The CRS report also makes another important point — that impeachable offenses are not necessarily ones a politician can or will be tried for in the court system:
"Alexander Hamilton noted that impeachable offenses were 'political, as they relate chiefly to injuries done immediately to the society itself.' For example, Congress has impeached federal judges for misconduct and corruption that was not necessarily criminal. One scholar notes that impeachment after an official leaves office is important because it 'reaches offenses and provides punishment that the criminal process' does not."
Even the professor whom Republicans lunched with Tuesday, Jonathan Turley of George Washington University, who now claims "removal of a president is the primary purpose of such a trial," was saying something very different 22 years ago, as pointed out by University of Texas law professor Steve Vladeck.
Drawing on the 1876 Senate impeachment trial of William Belknap — who was war secretary under President Ulysses S. Grant and who was tried after he resigned — Turley argued that the Senate "was correct in its view that impeachments historically had extended to former officials, such as Warren Hastings."
He wrote in the Duke Law Journal that a trial of a former officeholder would serve as a "deterrent to the executive branch" and stand up for "core values in a society," even if the person wasn't convicted and "even if the only penalty is disqualification from future office."
That was in 1999, the year after Democratic President Bill Clinton was impeached.
Who was William Belknap?
Belknap was a former Iowa state legislator who went on to be a Civil War hero and general for the Union Army. 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 living and lavish parties and spending, according to the Senate Historical Office.
No one knew where the money was coming from — until they did.
Belknap made a salary of $8,000 a year, about $200,000 in today's money. That's a very good salary, but not enough to prop up the kind of lifestyle Belknap was leading.
It turned out Belknap was on the take. Someone he installed to run a military trading post in Indian territory promised kickbacks for the appointment. And he delivered.
Belknap was pulling in some $20,000 a quarter from the scheme, 10 times his salary, for an equivalent today of about $2 million a year.
When Congress found out about it, articles of impeachment were filed that included "basely prostituting his high office to his lust for private gain."
In an effort to stave off the impeachment, "Belknap raced to the White House, handed Grant his resignation, and burst into tears," the Senate Historian's office notes.
It didn't work. The House impeached him later that day. When the case moved to the Senate, Belknap's lawyer argued that he couldn't be tried because he was now a private citizen.
The House impeachment managers countered that all the charges stemmed from things Belknap did when he was war secretary.
After three days of hearing arguments about it and two weeks of secret deliberations, the Senate voted 37-29 that Belknap was "amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached."
In the end, a majority of senators voted to convict Belknap, but that was short of the two-thirds necessary. Nearly two dozen senators who voted to acquit cited their belief that the Senate lacked jurisdiction. Just three said their vote was because of the evidence.
In a report after the case, the House impeachment managers said those who voted to acquit because they didn't think the Senate had the right to try the case showed they "refused to be governed by the deliberate judgment of the majority."
In the end, though, they thought going through with the case was important because it would set the precedent that just because someone had left office didn't mean the person was immune from consequences of Congress.
"It has been settled thereby that persons who have held civil office in the United States are impeachable, and that the Senate has jurisdiction to try them," they wrote.
They said the effort was "worth infinitely more than all the time, labor, and expense of the protracted trial closed by the verdict of yesterday."
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