The Middletown Press (Middletown, CT)
Should Trump, impeached but not president, be tried by the Senate?
On Friday, Sen. Chuck Schumer, the new Senate Majority Leader, announced that Nancy Pelosi, speaker of the House of Representatives, would transmit the article of impeachment against former President Donald J. Trump to the Senate on Monday and the trial would start the week of Feb. 8. And on Monday, Pelosi transmitted the article.
The article, approved by the House on Jan. 13 by a vote of 232 — all 222 Democrats and 10 Republicans — to 197, accuses Trump of “incitement of insurrection” in his Jan. 6 speech on the Ellipse that preceded the storming of the Capitol. It states that he reiterated false claims that “we won this election, and we won it by a landslide,” willfully made statements that encouraged — and foreseeably resulted in — imminent lawless action at the Capitol and caused a mob to unlawfully breach the Capitol, injure law enforcement personnel, menace members of Congress and the vice president, interfere with the joint session’s constitutional duty to certify the results of the presidential election, and engage in violent, deadly, destructive and seditious acts.
It further asserts that his conduct that day was consistent with his prior efforts to subvert and obstruct the certification, including specifically his phone call four days earlier to the Secretary of State of Georgia urging him to find enough votes to overturn the Georgia result and threatening him if he failed to do so. In all of this, the article states, he gravely endangered the security of the U.S. and its institutions of government, threatened the integrity of the democratic system, interfered with the peaceful transition of power, imperiled a coordinate branch of government, and thereby betrayed his trust as president.
However, the last paragraph of the article raises, at least implicitly, the question of whether, now that he has left office, Trump should be tried by the Senate. The paragraph states: “Wherefore President Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law, President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” But he no longer remains in office, no longer remains a threat to national security, democracy and the Constitution, and no longer needs to be removed from office. Can he still be tried?
Unfortunately, the Constitution doesn’t answer that question. Article II, section 4, of the Constitution states “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.” There are several precedents that we may hear about in the days to come, but they provide differing answers to the question.
The first case occurred in 1797, when Sen. William Blount of the new state of Tennessee, who speculated in and owned vast amounts of land, was discovered to be involved in a scheme to use militia forces to take lands in the Louisiana Territory that belonged to Spain. The scheme came to the attention of President John Adams who passed the information on to the Congress. The House voted to impeach him and the following day the Senate voted to expel him, raising the question for the Senate whether, since he was no longer a “civil officer” of the U.S., he could be tried and possibly convicted. After debating the matter, the Senate rejected a motion that he was still a “civil officer” of the U.S. and dismissed the impeachment.
A second case, in 1862, involved West Hughes Humphreys, who had been appointed a federal district judge in Tennessee in 1853 and became a Confederate District Court judge after that state seceded in 1861. Although no longer a functioning “civil officer” of the U.S., he was impeached by the House for publicly supporting secession and holding office in the Confederacy and was convicted by the Senate in a oneday trial, removed from his federal position, and banned from ever holding office in the U.S.
A third case, in 1876, involved William W. Belknap, Secretary of War under President Ulysses S. Grant. He was
implicated in a kickback scheme through which he and his wife received payments from the owners of a Fort Sill, Okla., trading post. When Grant learned of the scheme, Belknap tendered his resignation. A month later, the House impeached him and the Senate approved a motion allowing him to be tried despite the fact that he resigned prior to the impeachment. A majority voted to convict him but it fell short of the required two-thirds, so he was acquitted.
The Senate’s dismissal of Blount’s impeachment might be regarded as a precedent for dismissing Trump’s impeachment. But the two later decisions — especially the decision pertaining to Belknap — make it clear that, although there has never been a case of a president being impeached while in office but tried when no longer in office, the Senate does have the power to act on Trump’s impeachment. Nevertheless, even if there is, in the Humphreys and Belknap cases, some precedent for trying him now, there is a legitimate question whether a trial is the best use of the Senate’s time and energy, even aside from the fact that, given the 50-50 partisan divide in the Senate, it’s highly unlikely the Senate will vote by the required two-thirds majority to convict him. After all, a new administration has just taken office in the midst of the greatest health crisis in the country’s history.
Perhaps the Senate should take a leaf from the Humphreys case and have a very short trial. And if, as seems likely, the vote to convict falls short of the required two-thirds, censure him and be done with it.