Below is my USA Today column on the upcoming Senate trial of President Donald Trump. The Hill was recently my second column on why Trump’s best defense might not be a defense – to skip the Senate process and force a threshold vote on the constitutionality of the ex-president trial.
Here is my column:
With President Donald Trump’s second impeachment from office, Congress is facing one of the most bizarre moments in constitutional history: the removal of someone who has already resigned. The retroactive removal would be evidence of the timeliness of the anger. It’s not without precedent, but without logic.
The proposed impeachment proceedings against Donald Trump after he left office would be our own version of the Cadaver Synod. In 897 Pope Stephen VI was seething. And his followers further about the action of Pope Formosus, who not only died in 896, but was followed by another Pope, Boniface VI. After the brief reign of Boniface VI. Pope Stephen even made some points. He pulled Formosus out of his grave, propped him up in court, and sentenced him for various violations of canon law. Formosus was then taken out, three fingers cut off, and finally thrown into the Tiber.
While some crave the Potomac for their own Cadaver Synod, spokeswoman Nancy Pelosi and other Democrats have stated that their main concern is the possible disqualification of Trump from holding a future federal office. However, disqualification is an optional penalty that follows a conviction and removal. It can be added to the primary purpose of removal stated in the Constitution. The Trump process would convert this additional punishment into the main purpose of the process.
This has happened before, but this precedent is only slightly better than the Cadaver Synod. That case concerned William Belknap, who served President Ulysses S. Grant as Secretary of War. Belknap resigned after allegations of corruption – shortly before the house was ousted. The Senate held a trial, but acquitted it. 29 of 66 senators with voting rights disagreed on a threshold motion, according to which Belknap “can be put on trial by impeachment. . . despite his resignation. “
In fairness to the Democrats, I have long dismissed the argument that it is too late to indict a president while he is in office. As I said in both Clinton and Trump impeachment hearings, the House is required to impeach if it believes a president has committed a great deal of crime and misdemeanor. If this happened on the last day of a term, it would still be justified.
My objection to this second impeachment was that it did not take into account the traditional impeachment process. It was a hasty impeachment, which is constitutionally what Snapchat means to conversation. It reduces the process to a crude, brief, and partisan vote. This could have been avoided. A hearing could have taken place in one day to change the language of the article to reflect the impact of the impeachment. It would also have enabled a formal request for a response from the President.
Instead, the impeachment was pushed through a partisan muscle vote, with only ten Republicans supporting the single article. It was an ironic moment. In Trump’s most recent impeachment, I punished Democrats for getting impeached on the shortest record and in the shortest time frame of impeachment of the president. They insisted that there was no time for witnesses before the House hearing, but later waited weeks to bring the articles to the Senate. Now they have surpassed that record with an impeachment with no traditional record in a matter of days. The Senate will not meet until January 19, and a trial is expected to take place after January 20.
I struggled for a long time with the idea of retroactive impeachment proceedings. I can see the value of stating that a president was not only accused but convicted of unconstitutional acts. There is also the value of disqualifying such a person from future office. What was a fascinating academic conundrum, however, is now a pressing constitutional concern.
The impeachment proceedings against a private individual raise a number of constitutional and practical problems. For example, a president can rely on publicly funded attorneys like the White House attorney and assert the president’s privileges. After leaving office, an ex-president would not only pay for his own defense but also lose the ability to determine privileges. Indeed, many such claims would be subject to scrutiny by his successor, Joe Biden. It would be like Pope Stephen making critical decisions about Pope Formosus after pulling him out of the crypt.
The main question, however, would be whether this is really an impeachment, as opposed to a strange constitutional autopsy of a passed presidency. That is the question that the Chief Justice of the Supreme Court, John Roberts, might be asking himself if he has convened that role. A chief judge doesn’t just show up in an impeachment trial. He must make an independent judgment on the performance of a constitutional function. Even if it decides this is a valid process, that decision could be rejected by the Senate in a motion to dismiss the item. In the Clinton impeachment, the Democrats called for such a threshold vote prior to trial. In the absence of a president seeking impeachment, the Senate may not even be able to ask Roberts for the presidency – a significant departure that only undermines the whole process.
That impeachment should end with the Trump administration. I do not blame those who see the President’s conduct as incontestable. The speech was inconsiderate and wrong. My primary objection was the use of a quick impeachment process and the language of the impeachment article. That is now part of Trump’s legacy as president. The question now is what will be the disturbing constitutional legacy that the Senate left in the trial of an ex-president.
In my view, a retrospective deportation vote would involve the use of rash impeachment to fundamentally change the role of impeachment in the United States. It would take a rush for judgment and turn it into a parade of constitutional horrors. Either party could retrospectively indict or remove a former president for removal from office. If a party fears that a president might run for a term, it could remove the political threat of impeachment. Rashly impeachment would be worse than creating a kind of “no-confidence vote” under our constitution. After a vote of no confidence in the UK, a former prime minister can run for office again.
Condemnation would not close either, as many may hope. Such a disqualification would be one of the few impeachment issues that could be challenged in court. Trump would have had to sue for his right to run again and he could well win. It would then be more popular than ever with many citizens who want to defy the Washington establishment. There is another way. The Senate could end the process with a threshold vote and make history and voters the final judge of Donald J. Trump.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley