Does the U.S. Senate have jurisdiction to try former President Donald Trump? There’s no shortage of absolute yes and no answers floating around the media.
But here’s the real answer: We don’t know.
Before going further, let me clarify one thing: I believe that, on the merits, the article of impeachment against the former president is absurd.
But whether any president can be impeached and convicted after he leaves office is an entirely different issue.
This essay may be hard for some readers to follow. But persevere: When you reach the end, you will understand why the real answer is, “We don’t know.”
The Constitution is a legal document. For at least 500 years, the usual way English and American courts interpret legal documents has been to seek the “intent of the makers” (pdf). If we don’t have clear evidence of the makers’ actual intent (or, more precisely, their understanding), we examine the public meaning of the document’s words when it became effective.
In the case of the Constitution, the “makers” were the 1,648 delegates to state conventions that ratified the document between 1787 and 1790.
We don’t have clear statements from the ratifiers on whether impeachment covered ex-officers. So we have to ask what the public meaning of the Constitution’s impeachment language was in the period 1787–90. How would the general public have understood it?
We should ignore some of the “precedents” now being discussed because they don’t answer that question.
For example, in 1797 the Senate expelled Senator William Blount and then the House impeached him. The Senate refused to try him. We really are not certain why the Senate refused jurisdiction. It could have been because the Senate didn’t think a member of Congress can be impeached, or because Blount already was out of office, or both.
One reason we can dismiss the Blount case is that it’s ambiguous. A more important reason is that decisions made in 1797 usually are poor evidence of what the Constitution’s ratifiers understood in very different circumstances several years earlier.
Here’s another example of white noise: In 1876, Secretary of War William Belknap was impeached after he left office. A majority of senators thought they could try him, but a sufficient minority blocked conviction because they thought they could not. This case is also ambiguous. But it also is useless because a decision made in 1876 is zero evidence of what the Constitution’s ratifiers believed nearly a century before.
Now let’s look at some relevant evidence: the Constitution’s text and facts available to those who ratified it. Let’s turn first to Article I (legislative branch).
Article 1, Section 2, Clause 5 grants an enumerated power: “The House of Representatives … shall have the sole Power of Impeachment.” Article I, Section 3, Clause 6 grants another: “The Senate shall have the sole Power to try all Impeachments.” (Emphasis added.)
Observe that the Constitution grants these impeachment powers to houses of Congress individually, not to Congress as the federal legislature. (The courts call this kind of grant a “federal function.”)
What did the phrase “Power of Impeachment” mean in 1787–90? There’s good evidence it included proceedings against ex-officers and even against private citizens who had never been officers. All through the constitutional debates, the British Parliament carried on a famous impeachment proceeding against a former colonial governor named Warren Hastings. George Mason mentioned the Hastings case on the floor of the Constitutional Convention.
Moreover, some state constitutions explicitly authorized impeaching ex-officials. Comments in the Constitutional Convention and in the state ratifying conventions also can be construed as accepting impeachment of ex-officials.
But that’s not the end of the story. Let’s turn to other parts of the Constitution:
After the enumerated powers to impeach and try impeachments, Article I adds restrictions (Art. I, Sec. 3, Clauses 6–7). Here they are:
“no Person shall be convicted without the Concurrence of two thirds of the [Senators] present … 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.”
Those arguing against impeachment of an ex-officer point out that this passage refers to removal from office, which can apply to only a present officer. True. But on the other hand, it also permits disqualification, which can apply to either present or former officers.
Yet on the third hand (as Tevye in “Fiddler on the Roof” would say), Article I specifies that a former officer may be subject to normal criminal proceedings, suggesting those are the primary remedies against ex-officers.
Article II of the Constitution (executive branch) first identifies the president; then it lists his powers and duties (pdf) and those of some other executive officers; finally, Section 4 defines a method for removing officers:
“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.”
Opponents of convicting Trump rely on this section. They point out that this passage, like the previous one, seems to apply only to individuals then serving: “The President, Vice President and all civil Officers … shall be removed from Office.” They are supported by a legal guideline that, when loosely translated from Latin, says the following: If a document lists some things (e.g., President, Vice President, and all civil Officers) then that suggests the document excludes other things (e.g., former officers).
Let’s carry that further: We know the U.S. Constitution excludes impeachment of private citizens who have never been officers, even though the Constitution does not say so explicitly. Why do we know this? Because private citizens who have never held office are not part of the phrase “President, Vice President, and all civil Officers.”
We also we know that it’s unconstitutional to impeach a member of Congress. Why? Same reason: They are not on the list of those who can be impeached.
And we know—or, rather, should know—that you can’t constitutionally impeach a person (even Donald Trump) for questioning an election or telling a crowd to “peaceably” walk to the U.S. Capitol. Why? In part because the Constitution tells us the grounds for impeachment are “Treason, Bribery, or other high Crimes and [high] Misdemeanors.” The list implies that other reasons are excluded.
There’s some history to back up the view that the Constitution doesn’t permit impeachment of an ex-officer: During the years 1776 to 1786, nearly all states wrote new state constitutions. In general, the later ones restricted impeachment more than the earlier ones, because Americans were progressively narrowing British impeachment law.
We also know that the U.S. Constitution’s framers were particularly influenced by the New York and Massachusetts constitutions. Much of the U.S. Constitution’s impeachment wording tracks their language. Unlike some earlier state constitutions, those of both New York and Massachusetts implied that ex-officers cannot be impeached.
Let’s look at another variable: When you read a term in a legal document, it helps to know the reasons (“policies”) behind it. We know that one reason for impeachment is to get rid of bad officers. But there’s also a policy of deterring bad conduct in office. This argues for allowing impeachment of former officers, because deterrence is stronger if you know you can be impeached after your term is up.
However, still another constitutional policy—one that pervades the entire document—cuts the other way. It’s to discourage (although not always to forbid) actions viewed as retroactive (pdf) or otherwise unfair.
For several weeks, now, I’ve been pointing out in broadcast media that the Constitution’s ban on “bills of attainder” argues against impeachment of an ex-officer. (I’m also gratified to report that some other commentators have caught on.)
A “bill of attainder” is a legislative declaration that a named person is guilty of a serious crime. The Constitution’s ban on bills of attainder is a good illustration of its policy against retroactivity and similar unfairness.
In some ways, impeachment and conviction of an ex-officer is analogous to a bill of attainder: It is a legislative decree plucking a citizen out of private life and punishing him without the normal due process protections of the judicial system.
In colloquial terms, we can say the Constitution doesn’t like that sort of thing. So arguably it doesn’t like impeaching private citizens who happen to be former officers.
You can see how the evidence goes in both directions. One reason the question is still unanswered is because we’ve allowed the field of constitutional scholarship to become the preserve of law professors—few of whom have the background and training necessary for the job. Additionally, many prefer to argue for their (usually leftist) political agenda rather than objectively research and report. This helps explain why law professors waged a long debate on the meaning of the impeachment phrase “high … Misdemeanors” without consulting the 18th century law books and statutes that could have answered the question (pdf).
Perhaps one day a real scholar will determine whether the Constitution allows impeachment of a person who has left office. Then again, perhaps the question will never be answered.
This article first appeared in the Epoch Times on January 30, 2021.
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