One of the main arguments against the impeachment and possible conviction of Donald Trump is that his trial and conviction (if any) will not take place until after he leaves office. Critics, particularly prominent former federal judge Michael Luttig, argue that this is unconstitutional.
Protect Democracy recently released a letter signed by over 170 legal scholars setting out the reasons why the impeachment and trial of those who have resigned are indeed constitutional.
The list of signatories is characterized by its ideological diversity – unusual at a time when legal scholars’ views on controversial issues are often polarized according to ideological aspects. Notable conservative and libertarian signatories include Steve Calabresi (co-founder of the Federalist Society and leading academic expert on executive violence), Michael Stokes Paulsen, and my co-bloggers Jonathan Adler and Sasha Volokh. I also signed the letter myself.
Another VC co-blogger, Keith Whittington, did not sign the letter but wrote an excellent article on lawfare that came to the same conclusion. Keith is one of the foremost legal scholars in the country. I myself wrote about the problem here before.
The signatories also include a large number of prominent center and left law scholars (including Laurence Tribe, Martha Minow, Neil Siegel and Rebecca Zietlow, among others) as well as several prominent impeachment experts such as Frank Bowman and Brian Kalt (authors of Was ist der most famous and by far the most thorough scientific article on the subject of indictments against former officials?
Here is an excerpt from the letter:
We take no position on whether the Senate should condemn President Trump over the impeachment trial that will soon be broadcast by the House of Representatives.
We differ from one another in our politics and we also differ from one another in questions of constitutional interpretation. Despite our differences, based on our carefully considered views on the law, we both agree that the Constitution allows for the impeachment, conviction and disqualification of former officials, including presidents.
Our common conclusion is supported by the text and structure of the Constitution, the history of its drafting and the relevant precedent. The Constitution gives the House of Representatives “sole power to impeach” and the Senate “sole power to review all impeachments”. It provides that “the President, Vice President and all civil servants of the United States shall be removed from office for impeachment and conviction for treason, bribery or other serious crimes and misdemeanors”. It goes on to say: “The sentence in cases of impeachment shall not extend beyond impeachment and disqualification from holding and enjoying an honorary, trust, or profit office in the United States.”
In other words, the constitution’s impeachment powers are twofold. The first is impeachment, which occurs automatically after a current official is convicted. The second is disqualification from future offices, which occurs in cases where the Senate deems disqualification to be appropriate given the conduct for which the accused has been convicted. The power of impeachment must be read to fully utilize both aspects of that power.
Impeachment is the sole constitutional means of removing a president (or other public official) before the end of his or her term of office. However, the impeachment authorization provision does not limit impeachment to situations where impeachment is carried out. Indeed, such a reading would thwart, and potentially nullify, an essential aspect of impeachment: the Senate’s power to impose disqualification from future office as a penalty for conviction.
The fact that the position outlined in the letter is supported by such a wide range of experts does not automatically prove that it is correct. Experts can be wrong, sometimes spectacularly. For reasons that I summarized in 2015 (long before the current impeachment controversy), however, it often makes sense for laypeople to show a degree of deference to experts as the latter address issues in their specialist areas and expert agreements go beyond ideological boundaries ( make it less likely that it is simply the product of an ideological or partisan bias).
Even if the other signatories and I are right on this particular issue, there are other possible objections to Trump’s condemnation, both legal and pragmatic. The letter does not address these questions, although I have tried to do so myself in other scriptures (e.g. here and here). However, the question of the constitutionality of the indictment against former presidents has become a focus of the debate, and the letter from the scholars is expected to make a useful contribution to that discussion.