In a critical vote at the start of Trump’s second impeachment trial, nearly half of the Senate voted in favor of a motion from Senator Rand Paul that challenged the constitutionality of impeachment for a former president. The motion was the subject of a filing motion, which is a procedural vote and does not necessarily bind a member. However, it was the first test of the body’s view of this unresolved question. After spending a lot of time with all of the Republican Senators just before the vote, I wasn’t surprised by the 45-55 vote. Members on both sides of this issue had good faith and civil exchanges on a historical and constitutional basis for such a process. Numbers from President Joe Biden to Senator Susan Collins (R., Maine) indicate that it is evident that there are not enough votes to convict and that Donald Trump is likely to be acquitted. Other senators are now calling the process a “dead letter” or “dead on arrival”.
As before the first Trump Senate trial, I was asked to present Senate historical and constitutional questions to all 50 GOP Senators. It’s an extraordinary and in many ways inspiring experience. In such private surroundings, the senators can have an open and objective exchange. I’m not going to discuss what a senator said, but there was a whole range of perspectives and a demonstration of great depth of knowledge among the members. These senators have faced the same problems that many of us as scientists have faced for decades. I was impressed not only with their knowledge, but also with their honest efforts to get this right as an institutional matter. There were a multitude of opinions and questions, but it was a civil and substantive discussion.
As I have said repeatedly, this is not an easy problem and people in good faith may disagree. As recently stated in relation to a letter from scholars in favor of impeachment, I still consider this to be a narrow issue where I have repeatedly revised the constitutional text and history in my own head. There are precedents that can be cited on either side of the issue. In fact, the only two cases in the United States – Blount and Belknap – seem to favor different sides of the question. I presented this story and the conflicting positions. One case, Belknap, shows that an impeachment has been used in the past where removal was not for the purpose of the trial because the accused was already out of office. English cases such as Warren Hastings can also be cited for the proposal as I discussed in my previous fellowship. None of these cases involved a former president.
In addition, there is no question that retrospective legal proceedings can have value in condemning misconduct and also ensuring disqualification. Over twenty years ago I wrote an article on law review that set out the basis for these cases, and I still believe it. See Jonathan Turley, Senate Trials and Faction Disputes: Impeachment as a Madisonian Device49, Duke Law Journal 1-146 (1999). I explained that such attempts also play an important dialogical role retrospectively. I still believe that. Accordingly, I would do little to change the much-cited excerpt from my 1999 paper on the obvious purpose of non-removal that the Belknap trial has shown. (I’d like to add a discussion of the opposing text and supervisory issues that Blount prefers to Belknap.)
Many have a legitimate desire to condemn President Trump’s actions. I have joined many in this condemnation. In fact, I criticized his speech as it was being delivered, declined to contest the votes, and declined the president’s false statements regarding the authority of Vice President Michael Pence. I am still in favor of a motion of censure that could find bipartisan and bicameral support.
However, there are difficult textual and logical hurdles these senators face. I don’t envy them and tried to give them the best possible background. Everyone has to decide whether this is constitutionally permissible. This has divided scientists for decades. Opinions vary, although virtually all of the scientists who have written on the subject have said that it is a very narrow question. Professor Cass Sunstein sees strong arguments on both sides and agrees that the answer is not clear. However, he believes the House cannot indict a former civil servant, but the Senate can likely convict one. I believe the balance of text analysis favors the narrower view, but (as I told the Senators) there is plenty of room for debate.
The second question is whether this is sound constitutional practice. In my view, this impeachment shows that the value of retrospective attempts is outweighed by the cost. I will not repeat my earlier arguments on this issue. However, those costs are higher if a fast-track process is used to bring this case to the Senate without records of a hearing or witnesses. Again, I have not changed my view of the historical records of retrospective attempts or the value of such attempts. Like most scholars, I have not focused on this topic in previous writings, but my view of text barriers has evolved. Although my textual view has tightened in the last 20 years, I still see impeachments as an important dialogical value, separate from the question of distance. So I believe the Senate can remove a president until the last day for the same reason. These attempts play an important role in avoiding abusive or corrupt practices. I would still oppose a rash impeachment, but once they hold a hearing and are making a sufficient record for the Senate, the value of such impeachments includes condemnation of the conduct, not just removal itself.
As I discuss in a column on Hill today, there are still regulatory concerns that Senators must address, as well as the remaining constitutional issues. The procedural vote shows that Trump will prevail in the process and obtain a second acquittal. The Senate refused to call any witnesses the House did not call when it was first impeached. Without such witnesses, there is no direct evidence of Trump’s intent to start a riot. Without such a record, a conviction would be extremely unlikely.