If American politics shows anything, it is this hostility, not necessity, the mother of invention.
Many remain angry about the January 6th uprising in the Capitol. I condemned President Donald Trump’s speech while it was being given and declined to contest the election. However, it is the future of the Constitution, not Donald Trump, that concerns me most as the Senate is about to remove a president who has already resigned.
At first glance, the proposed impeachment process is at odds with the language of the Constitution, which explicitly states that the removal of a president is the primary purpose of such a process. At this point, Trump will not be president or in office. He will be a citizen and should best serve legally to waive the process as extra-constitutional and invalid.
The Trump trial could prove the history of two cases with strikingly different precedents. Democrats are more likely to rely on the William Belknap case than on William Blount. For Trump, Blount should be the focus of the Senate.
Blount was a senator from Tennessee who was alarmed by a plan for Spain to cede what is now Louisiana to France. Blount was a land speculator and wanted Britain to take the land instead. This led to a call for impeachment, but Blount was expelled from the Senate in 1797 before he could be tried there.
Blount returned to Tennessee and refused to appear before the Senate because he had not undergone impeachment proceedings after he left office. He also denied the impeachment clause being applied to a legislative official. The Senate apparently agreed and dismissed the case.
No other member of Congress has ever been impeached.
The Belknap case is free of any of the threshold problems in the Blount case. He was not a member of Congress. One problem remained, however: he was no longer in office. However, as a former executive who had a full court hearing, this is the more relevant case.
In 1876, Belknap resigned as minister of war after allegations were made that he had accepted bribes and committed other corruption in the Indian territories. Again there was a vote on whether the Senate could even bring someone to justice who is no longer in office. Twenty-nine out of 66 voting senators disagreed with holding a trial at all and voted against the suggestion that Belknap “may be impeached despite his resignation”.
Given that vote, it was not surprising that Belknap was acquitted.
This is a time when Trump’s natural tendency to be dull serves better to be a blount. If the Senate refuses to appear, it faces the glaring problem of holding a trial against a citizen to decide, under Article I, Section 4, whether he should be “removed from office” – after he has already resigned .
This is not an individual, but an institutional issue that must be raised before a trial. Each senator must decide whether such a process is constitutional before deciding whether a defendant can be retrospectively dismissed for a major felony and misdemeanor.
This is a subject that reasonable people cannot agree on. Many of us have struggled with this question for years without a solution.
There are good faith arguments for the constitutional authority to judge such acts and to impose future disqualification from the Federal Office. According to this theory, however, any previous president could be prevented from running again as a result of the shift in the balance of Congress. Impeachments can therefore be used to even gain long-term scores or curry favor with some voters.
If the Senate is on trial despite a lack of constitutional authority, Trump can sit in Mar-a-Lago and promise to question all efforts to expel him from future office. Indeed, the political misjudgment can be greater than the constitutional misjudgment.
Attempting an empty defense table would increase the perception of many that it is an inappropriate, or at least unnecessary, exercise. Should a court later declare the trial unconstitutional, it would be seen as a justification for Trump, who has long claimed the Washington establishment did everything possible to remove him from office.
Should an attempt to ban his candidacy in 2024 fail in court, it could revive his reputation, which is currently at an all-time low. Indeed, Blount was supposed to be a cautionary story again. Blount remained popular in Tennessee and spent the rest of his life in an elected state office. (He died two years later during a deadly epidemic – another similarity to our modern times.)
As I indicated earlier, despite legitimate anger over Trump’s January 6 speech prior to the Capitol uprising, the Senate may show institutional reluctance. Trump’s legacy already includes the inglorious distinction between two impeachments. The Senate would not aggravate this ignoble legacy with an act that would probably be extra-constitutional, but undermine it.
To want to add this additional condemnation to Trump would be too high a price to pay for the Constitution and ultimately the country.
NOTE: This column was also displayed on Fox.com