Republican senators find themselves in a very nasty spot

Impeachment constitutionality argument is pure red herring

Spoiler alert — the trial for Donald Trump’s impeachment will not result in his conviction. On Jan. 26, the U.S. Senate voted 55-45 to reject Rand Paul’s motion that an impeachment trial would be unconstitutional. While this confirms, by majority vote, Senate opinion that an individual remains subject to conviction for impeachment after leaving office, it also demonstrates that an insufficient number of Republican senators (five of the 17 required, to be exact) are likely to ultimately vote for conviction. Without the required two-thirds support, the result is preordained.

Going back in American history, the issue of whether someone can be convicted after leaving office was not specifically addressed in the Constitution. That does not, however, mean that there is credible doubt as to the intent of its drafters, nor of the position of subsequent members of both the legal and legislative branches of government.

Most glaringly, the very issue was being played out in British court during the Constitutional Convention. Warren Hastings, a former governor general of India who had left office two years earlier was being impeached for embezzlement, extortion, coercion and an alleged judicial killing. As noted by Harvard law professor Lawrence Tribe, “The Hastings impeachment was repeatedly referenced during the Constitutional Convention in Philadelphia.” The timing of the British impeachment procedure was never raised as a concern.

There is also precedent in American law. The best-known example is the 1876 impeachment of Secretary of War William Belknap. After investigating allegations that Belknap received a bribe for appointing an individual to a trading post in Indian Territory, the House investigation committee found “unquestioned evidence of malfeasance.” Belknap immediately resigned, resulting in a House debate of its authority to impeach a former official. The House unanimously approved the impeachment resolution, confirming its opinion that a former office holder was still subject to impeachment. At Senate trial, private counsel for Belknap made the argument that, given his resignation, the Senate lacked authority to bring him to trial. After three days of argument and two weeks of deliberation on the issue, the Senate voted 37 to 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.”

Given historical support and compelling legal opinion, there would have to be strong argument to consider overturning this established position. But fairness and common sense compel otherwise. If a public official could evade impeachment simply by resigning, the Senate’s power to convict would be emasculated. And what is there to then prevent the same individual from returning to office?

But let’s not kid ourselves here — this “constitutionality” argument is pure red herring. Republican senators find themselves in a very nasty spot. Trump may be gone, but he still holds sway over a significant portion of the Republican electorate. He has made his intentions clear to seek revenge on any Republican office holder who crosses him, including by recruiting more “Trumpy” competitors for the next primary campaigns. Thus, a vote to convict puts their own political future at significant risk. But to support and defend an individual who fomented insurrection against their very body sits at odds with any sense of respect for the democratic principles that form the foundation for the American way of life.

So, with an audible sigh of relief, the alleged constitutional loophole has been proffered and grasped by 45 Senators. Nonetheless, when the time for a conviction vote is nigh, each Republican Senator should be judged, by themselves and their electorate, in response to a simple question — Am I basing my decision on the impact it will have on my personal political prospects, or on the oath of office that I swore upon entering these hallowed chambers:

“I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”