A Senate trial of president would be unconstitutional

“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,” states Article II, Section 4 of the United States Constitution.

After the violence at the U.S. Capitol building on January 6, various members of Congress immediately called for the impeachment of President Trump for his alleged role of inciting the violence. In the emotion following the event and the impending transition of power on January 20, Democratic leaders of the House of Representatives quickly drafted articles of impeachment. Unlike the three prior impeachments of an American president, which involved weeks of evaluating the evidence and examining/cross-examining witnesses, this impeachment involved solely votes of House members. The clear intent of the hasty impeachment was to beat the January 20 transition.

Despite foregoing any due process to beat the transition, this snap impeachment still did not allow time for a Senate trial before January 20. This leaves a critical constitutional question for the Senate: Whether or not senators have the constitutional prerogative to convict a former president following impeachment. The answer is clear: They do not have such power, and following through with a trial of a former president sets a dangerous precedent for all Americans and our system of checks and balances. Let me explain.

First, the impeachment clause from Article II, Section 4 provides clear language that impeachment and conviction is to be used only to remove a current president from office: “The President … shall be removed from Office on Impeachment for, and Conviction of … .” Additionally, Article I, Section 3, Clause 7 provides that the Senate’s power of judgment of impeachment “shall not extend further than removal from office and disqualification” from holding another office. Attempting to convict a former president goes against the stated purpose of impeachment and conviction, and requires an extraconstitutional justification.

Justice Scalia put fidelity to the text of the Constitution like this: “You will sometimes hear [originalism] described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Those arguing for the power of the Senate to try a former president bring up an 1870s case of the impeachment of Secretary of War William Belknap. This impeachment came after his resignation but set bad a bad precedent in a unique case. The constitutionality of impeachment and trial was questioned at the time and was never ruled constitutional by the Supreme Court. Importantly, Belknap resigned hours before he was going to be impeached, solely to avoid impeachment. The evidence and witnesses against Belknap were beyond dispute. Belknap had even admitted to taking substantial sums of government money illegally from the profits of Fort Sill trading posts. Regardless of the evidence, a number of House members questioned the constitutionality of this impeachment. He was impeached anyway.

The Senate acquitted Belknap despite the overwhelming evidence and slam dunk case. Importantly, senators never doubted Belknap’s guilt. The reason for his acquittal was that many senators held they didn’t have the power to try the case. Before the trial started, almost half the senators voted against the trial on constitutional grounds. After Belknap, there was a 1913 case involving the impeachment of a former judge, but this was also a bad precedent.

Beyond the text of the Constitution, the clear purpose of impeachment remains removal from office. During the Constitutional Convention, George Mason initiated the subject of impeachment as “some mode of displacing an unfit magistrate.” The discussions were solely about removal of unfit officers and the grounds of removal. Punitive actions against the individuals were reserved for the courts after impeachment. Article I, Section 5, Clause 7 ends with the officeholder facing potential criminal and civil penalties for crimes after impeachment.

As a practical matter and showing the contradiction the trial of a former president would create, the Senate must first vote for the president’s removal from office by a two-thirds vote. Only after that absurdity can a majority vote of the Senate prevent holding further public office. If that is ultimately the goal of impeachment, it must be achieved by different means.

The prohibition of a bill of attainder is critical for the protection of due process; such a bill would allow Congress and not the courts to try and convict a private citizen. Bills of attainder were used in Parliament as a way to convict individual citizens. Our founders found it absolutely contrary to due process and separation of powers. The Constitution specifically prohibits bills of attainder and therefore limits impeachment to removal of officeholders. The implicit motivation of punishing and humiliating Donald Trump after he leaves office makes clear this trial would act as a de facto bill of attainder. Trump will still be liable to the courts for any potential wrongdoing, and that’s what the Founders intended by their limitation on the reach of impeachment.

Senators should not put former president Trump on trial after this snap impeachment. Due process was nonexistent during the impeachment, and the Senate does not need to violate the Constitution. Let’s get back to what our wise founders intended.

Bill Connor is a 1990 Citadel graduate, 30-year Army infantry colonel and combat veteran. He is a writer and attorney and lives in the Charleston area.