A reluctant no on impeachment

On Tuesday, U.S. Sen. Rand Paul tried to put an end to the impeachment trial of Donald Trump by finding it unconstitutional, since Trump no longer holds office.

Arizona’s two senators, Kyrsten Sinema and Mark Kelly, voted to continue with the trial, as did all other Democratic members. Only five Republicans joined them. The rest of the Republican members, 45 in number, agreed that proceeding with the trial was unconstitutional.

The reluctant view here is that Paul was correct. Impeachment only applies to current officeholders subject to removal. Convicting Trump, and barring him from running again, isn’t in keeping with the constitutional order.

This is not to say that Trump didn’t commit an impeachable offense, although the article approved by the House fails to properly delineate it.

The best insight into what the framers intended as impeachable misconduct is found in what Alexander Hamilton wrote in Federalist No. 65: Impeachable offenses are those which proceed “from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Trump lost the 2020 presidential election. Rather than accept that, he plotted to overturn the democratic result by getting state legislatures controlled by Republicans, such as Arizona’s, to designate Trump electors rather than the Biden ones chosen by voters.

This was a grave abuse and violation of the public trust. That – not the sketchy charge of inciting the violent storming of the Capitol – was Trump’s impeachable offense. Moreover, plotting to cling to power despite losing an election fully warrants banning Trump from ever holding office again. Trump has proven himself a threat to American democracy.

Now, I know that there are legal scholars who contend that someone who has vacated public office can nevertheless be impeached, convicted and banned from future office. I would prefer to be so persuaded. But I don’t think that is the conclusion that best fits what the Constitution actually says.

Article II, which sets forth the powers and duties of the executive, says that the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” In other words, impeachment is for removal from office.

Article I, which covers the legislative branch, says that: “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.” It is a strained reading of that section to contend that disqualification can be considered other than in the context of a removal action.

The primary precedent cited for conviction and disqualification independent of removal doesn’t really make the case. In 1876, the Senate proceeded with a trial for impeachment of War Secretary William Belknap, even though he had resigned. A constitutional challenge was also made in that case. The vote to proceed was very narrow, 37 to 29. Belknap was acquitted.

Many senators who voted to acquit said they did so not because they thought him innocent, but because they regarded the proceeding as unconstitutional. So, although the vote to hold a trial without removal being the primary issue narrowly prevailed, the view that such a trial was unconstitutional actually determined the outcome.

The same is the inevitable conclusion of this Senate impeachment trial.

The arguments that trial and conviction other than in the context of removal can set norms and discourage misconduct in an officeholder’s waning days have merit. But they are extraconstitutional, not rooted in the document’s actual language. The best reading of that language is that impeachment was intended for removal. And that the further sanction of a ban on future office was something to be considered in addition to removal, not independently from it.

That leaves an unsatisfactory feeling that Trump is getting away with it. And, since he would be free to run again, in a sense he is.

There is an apt metaphor for how this process nevertheless offends constitutional sensibilities.

In an impeachment trial of a president, the Constitution specifies that the chief justice of the Supreme Court shall preside. Substantively and symbolically, that guards the process against runaway political passions or calculation. In No. 65, Hamilton noted the value of the chief justice serving in this role.

But Chief Justice John Roberts isn’t going to preside over this trial. That’s because Trump no longer is president.

Instead, the presiding officer will be Sen. Patrick Leahy, as hard-bitten a partisan as there is in Washington.