Historic Second Impeachment Part One: Constitutionality

Historic Second Impeachment, Part One: Questions of Constitutionality and Unity

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February 3, 2021

Last week, the House of Representatives delivered an article of impeachment to the Senate, accusing former President Donald Trump of inciting violence against the U.S. government on the basis of his actions relating to the January 6 storming of the Capitol.¹ Already the first U.S. president to be impeached twice, President Trump will also become the first to face a Senate trial after leaving office.² Before the trial starts on February 9, members of Congress face a unique historical and political context as they consider whether they can, and should, convict a former president.³

One week after the Capitol riot,⁴ ten House Republicans joined with Democrats to impeach President Trump, making it the most bipartisan impeachment vote in U.S. history.⁵ However, for the evenly split Senate to reach the two-thirds majority required to convict, 17 Republican senators would need to join with every member of the Democratic caucus.⁶ A Senate vote on January 26 cast doubt on that scenario.⁷ Although Democrats quashed an attempt led by Senator Rand Paul, R-Ky., to declare the upcoming trial unconstitutional, only five Republicans joined them,⁸ prompting Paul to characterize the upcoming case as “dead on arrival.”⁹

Most Senate Republicans have echoed conservative legal scholars, arguing that the impeachment trial is unconstitutional10 because its primary purpose is to remove a sitting president.¹¹ They contend that the Senate’s constitutional impeachment and removal powers do not extend beyond the incumbent office holder.¹² Senate Majority Leader Chuck Schumer, D-N.Y., has said that this argument “defies basic common sense.”¹³ Like-minded law professors point to the constitutional provision which allows the Senate to disqualify a convicted president from seeking office again—a separate consequence that would still apply in this case.¹⁴

A bipartisan group of over 150 constitutional law scholars (including members of the conservative Federalist Society) signed a letter highlighting disqualification as “an important deterrent against future misconduct.”¹⁵ Without it, they warned, “an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote.”¹⁶ An example of both points arose in 1876, when the Senate tried a secretary of war after he resigned his office in a failed attempt to avoid the trial.¹⁷

The Congressional Research Service (CRS) has weighed the 1876 example against cases in which resignation did indeed halt impeachment proceedings.¹⁸ CRS details how the judicial branch, out of concern for the separation of powers, would not review the Senate’s judgment on matters of impeachment.¹⁹ Many legal experts agree that senators could set aside facts and vote to acquit if they thought the Senate lacked jurisdiction to convict a private citizen.²⁰ Such a determination would neither depend upon nor establish a precedent.²¹

Many Republicans also argue that a trial will sow further division and undercut cooperation with President Joe Biden’s agenda²² and calls for unity.²³ Senator John Cornyn, R-Texas, cautioned of possible partisan retribution if former officials become open to impeachment trials,²⁴ at one point musing, “Could we go back and try President Obama?”²⁵ Senator Marco Rubio, R-Fla., has called the trial “counterproductive,” believing it will further “fuel these divisions that have paralyzed the country.”²⁶ But Democrats have dismissed those claims, emphasizing the importance of holding President Trump accountable for the insurrection.²⁷ According to Schumer, “Healing and unity will only come if there is truth and accountability. And that is what this trial will provide.”²⁸

Discussion Questions

Should the Senate be able to put a former president on trial after he or she leaves office? Why or why not?
How concerned are you that future presidents could commit impeachable offenses in the final days of a term and resign or leave office before facing a trial?
- Optional: Answer on a scale of 1-5, where 1 is “not at all concerned” and 5 is “extremely concerned.”
How concerned are you are you that allowing trials of former officials will lead to political retribution by the majority party?
- Do you think Republicans would attempt to impeach and convict President Obama? Why or why not?
- Do you think Democrats would attempt to impeach and convict President George W. Bush? Why or why not?
How important is the goal of unifying the country? How important is the goal of holding President Trump accountable for the insurrection?
- Is it possible to achieve both goals?
- Would you prioritize one of these goals over the other? If so, which one? If not, why not?
What impact do you think a Senate trial of President Trump will have on the goal of national unity? Will it help the cause by providing truth and accountability? Will it hurt the cause by fueling divisions? Will it not make an impact in either direction?

How to Get Involved

Check the websites of your state’s two senators to learn their thoughts on the constitutionality and value of a Senate trial. Contact them to share your opinions on the Senate trial and your thoughts about the goals of national unity and accountability for insurrection. Find contact information here:

Other Resources

Have students read a pair of opinion pieces on whether the Senate trial is constitutional, and ask them which side is more convincing.

Arguments supporting the trial: Law professor emeritus Laurence Tribe (Washington Post) | Law professor Jessica Levinson (NBC News)
Arguments opposing the trial: Former federal judge J. Michael Luttig (Washington Post) | Law professor Jonathan Turley (Fox News)

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Tasos Katopodis, Pool Photo via AP

[1] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment/u-s-house-to-bring-trump-incitement-charge-to-senate-launching-second-impeachment-trial-idUSKBN29U13G

[2] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021

[3] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment/u-s-house-to-bring-trump-incitement-charge-to-senate-launching-second-impeachment-trial-idUSKBN29U13G

[4] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021

[5] NPR: https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump

[6] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021

[7] Politico: https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655

[8] The Hill: https://thehill.com/homenews/senate/535925-senate-rejects-paul-effort-to-declare-trump-impeachment-trial

[9] Politico: https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655

[10] Fox News: https://www.foxnews.com/politics/professor-said-impeachment-trial-is-unconstitutional-to-attend-senate-gop-lunch-tuesday

[11] Ibid.

[12] Washington Post: https://www.washingtonpost.com/opinions/2021/01/12/once-trump-leaves-office-senate-cant-hold-an-impeachment-trial/

[13] Fox News: https://www.foxnews.com/politics/professor-said-impeachment-trial-is-unconstitutional-to-attend-senate-gop-lunch-tuesday

[14] NBC News: https://www.nbcnews.com/think/opinion/pro-trump-republicans-claim-senate-s-impeachment-trial-unconstitutional-nice-ncna1255621

[15] Politico: https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089

[16] Ibid.

[17] Bloomberg: https://www.bloomberg.com/news/articles/2021-01-25/trump-impeachment-trial-poised-to-open-with-march-across-capitol

[18] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013

[19] Ibid.

[20] Roll Call: https://www.rollcall.com/2021/01/26/legal-issues-are-political-in-trump-impeachment-trial/

[21] Ibid.

[22] Associated Press: https://apnews.com/article/82c0a1035ee55e6a8bda4d289943c641

[23] Al Jazeera: https://www.aljazeera.com/news/2021/1/21/pelosi-impeachment-trial-of-trump-will-not-harm-unity

[24] Associated Press: https://apnews.com/article/82c0a1035ee55e6a8bda4d289943c641

[25] The Morning Call: https://www.mcall.com/news/pennsylvania/capitol-ideas/mc-nws-pa-pat-toomey-senate-trump-trial-20210126-za2uqkxgknbpzj5ai2hl7upuxi-story.html

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