When the House cracked down on President Donald Trump a second time, I wrote a column on the similarities with the impeachment of William Belknap in 1876. The Senate vote to continue the process despite a constitutional challenge to the use of a retrospective process was boringly striking Resemblance to this earlier decision. That should be good news for Trump. The Senate declared the process constitutionally and effectively ended with 56-44 votes.
The Belknap has been accused of accepting bribes for contracts related to Indian territory. The caretakers accused Belknap of “disregarding his duty as minister of war and of having prostituted his high office because of his desire for private gain.” Belknap first advanced the judiciary’s argument that impeachment was not extended to former or retired “civil servants.” The Senate voted on this threshold jurisdiction issue, reiterating by thirty-seven to twenty-nine votes that it had jurisdiction over former civil servants.
The vote fell just five votes below the majority to reject the case as unconstitutional. The first vote on the matter in the Trump process on Rand Paul’s motion resulted in only five votes without a tie. This vote failed with six votes.
Therefore, the constitutionality of retrospective procedures remains a controversial proposal, and I expect that will continue to be the case. While many of us have reached conclusions on this question, most scientists add that this remains a narrow question. It sure is for me. As I have previously written, I stand by virtually everything I have written about the intent of the Belknap trial and the value of such retroactive convictions in my 1999 Duke article cited by the property managers in the impeachment process. Hence, my views on the inherent value of such attempts and the application of this theory remain unchanged. Where I’ve changed is the final question of jurisdiction. I have written for years about my development from constitutional interpretation to more textualism and formalism over the past three decades.
More importantly, not much has changed for the United States Senate. It remains almost divided in half on this issue.
There is, of course, another similarity to Belknap. He was acquitted. With 44 senators declaring this process categorically unconstitutional, it is difficult to see how the merits of the process would change their position. Hence, Trump will likely consider acquittal with at least 44 votes. That could well increase if some senators vote on other issues, like the impeachment of a president for inconsiderate rhetoric, as I discussed in a column yesterday. To get a few more votes, however, the defense’s performance needs to be significantly improved, which on the first day seemed casual and unfocused.
The immediate problem for the property managers will now be how this vote affects the demand for witnesses. With the outcome far from certain, the senators of both parties may not want to go through the trial with witnesses.
Belknap worked to the benefit of the property managers on the constitutional issue but is now working against them in the ruling. Belknap shows how such threshold votes harden the acquittal vote. Thus, Trump may have lost the threshold vote and won the final verdict.