Q&A: Prof. John Kincaid Discusses Impeachment Trial

Whether the federal Constitution permits Congress to impeach and convict a former president is, in the end, a political question. Legal opinion is divided.

Since 1789, the U.S. House has impeached 15 federal judges, one senator, one Cabinet secretary, and three presidents. Of these, only eight federal judges were convicted by the Senate, and only one of the impeached (and not convicted) persons was a former official.

The Constitution’s two relevant texts state: “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment . . . and Conviction” (Article II, Section 4) and “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold” any future federal office (Article I, Section 3).

The Constitution states only that a sitting president, who can actually be removed from office, can face impeachment. The Constitution says nothing about impeaching former officials. Chief Justice John Roberts’ refusal to preside over ex-President Donald Trump’s second impeachment trial suggests that he shares this sitting-president interpretation of the Constitution. Also, the great U.S. Supreme Court justice Joseph Story contended in 1833 that impeachment cannot apply to former officials because they cannot be removed from a position they have already vacated.

Others, however, argue that the Constitution allows impeachment of a former president because the Constitution does not expressly prohibit it, and an impeachment conviction of a former official enables Congress also to disqualify that person from holding any federal office. Many  of the states’ constitutions of the 1780s permitted impeachment of former officials. For example, Virginia’s legislature held an impeachment inquiry of Thomas Jefferson in 1781 right after the end of his governorship. Members of the Constitutional Convention in 1787 discussed the British Parliament’s 1787 impeachment of Warren Hastings two years after Hastings had resigned as governor of Bengal. Most Convention delegates apparently endorsed impeachments of former officials. After leaving the White House, John Quincey Adams (1767-1848) said that the possibility of impeachment “clings to a” former official “as long as he lives.”

Most important is one U.S. precedent for impeaching an ex-official. In 1876, the U.S. House impeached former Secretary of War William Belknap. Knowing the House was set to impeach him and believing the House could not impeach an ex-official, Belknap rushed to the White House and submitted a tearful resignation to Republican President Ulysses S. Grant before the House vote. Several minutes later, the Democrat-majority House impeached him anyway. Belknap’s attorneys made the same argument as Trump’s attorneys, namely, that Congress lacks authority to impeach an ex-official who was now a private citizen. The Republican-majority Senate deliberated for more than two weeks before deciding it could try a former official, but it failed to muster a two-thirds vote to convict Belknap.

Critics counter that Belknap’s case is inapplicable because it is the only such precedent in the face of many more precedents where Congress declined to impeach a former official. Also, Belknap was merely an appointed Cabinet officer, not someone who had been elected president. Further, they contend, Republican Belknap’s impeachment was an unconstitutional political maneuver by a Democratic House and a disgruntled coalition of Democrats and dissident Republicans in the Senate. Belknap was intensely disliked by most Democrats because he supported Grant’s Reconstruction policies and oversaw U.S. military operations in the South to protect freed African Americans from violent white supremacists and the rising Ku Klux Klan. 

We often look to The Federalist Papers of 1787-1788 for guidance on interpreting the Constitution. These 85 essays were written by Alexander Hamilton, John Jay, and James Madison in defense of the Constitution’s ratification. Supporters of Trump’s second impeachment approvingly quote Madison’s statement in Federalist 39 that “in Delaware and Virginia, [the governor] is not impeachable till out of office.” But opponents then quote Madison’s next sentence: “The President . . . is impeachable at any time during his continuance in office.” For Madison, this was one of the Constitution’s great improvements over states’ practices.

The Federalist Papers discuss impeachment 53 times and never mention the idea that the Constitution permits impeachments of ex-officials. Indeed, Hamilton seems to have alluded to the idea disapprovingly in Federalist 62 when he complained about “so many impeachments exhibited by each succeeding, against each preceding session” of many state legislatures. Supporters of Trump’s second impeachment argue that because most states impeached former officials, the framers assumed that the Constitution’s impeachment clauses incorporated that practice. This is doubtful. Hamilton, Jay, and Madison were careful writers who did not leave it to readers to make assumptions.

Further, if they believed the U.S. Constitution’s provisions incorporated the states’ impeachment practices, they would have said so in order to assure readers that the Constitution was not softer on corruption than the states’ constitutions. Instead, they showed throughout The Federalist Papers how the Constitution avoids many bad state practices, which may have included the political tumult caused by impeachments of ex-officials. The framers were overwhelmingly concerned about trying to prevent centralized tyranny, and authority to impeach sitting officials was a key tool for doing so.

The matter is now rather moot because the second Trump impeachment trial establishes a second precedent for impeaching ex-officials regardless of one’s view of the Constitution’s language. However, the Constitution’s framers knew that impeachment would be vulnerable to political abuse. This is why they required a two-thirds Senate vote for conviction. A majority-vote rule would have generated tremendous political abuses of impeachment and hobbled the presidency by undermining the separation of powers between the legislative and executive branches.

Yes. The U.S. Supreme Court would probably agree with Trump’s lawyers. The Court has long held that political speech is the most protected type of speech. Since 1969, the Court also has held that advocacy of violence against political institutions and persons is protected by the First Amendment. What is not protected, says the Court, is speech that is an actual “incitement to imminent lawless action.”

Trump’s repeated claims of election fraud also are protected by the First Amendment. Freedom of speech, opines the Court, includes lying, so long as it does not involve libel, slander, certain terroristic threats, false claims for a commercial product, or incitement to imminent violence.

In my view, Trump’s truly impeachable offenses were his refusal to publicly order the rioters to go home at the very first moment they assaulted Capitol police outside the building and his failure to order National Guard units to rush to the Capitol right after the first assaults. These were clear-cut derelictions of his constitutional duties.

A bill of attainder is a legislative act that convicts and punishes a specific person or group without a judicial trial. The federal Constitution prohibits both Congress and state legislatures from enacting bills of attainder (Article I, Sections 9 and 10). The prohibitions protect everyone’s fundamental right to a public judicial trial by jury. They also sustain the separation of powers by prohibiting legislatures from exercising a judicial power.

If, as Trump’s lawyers argue, Congress lacks authority to impeach ex-President Trump, then an act of Congress disqualifying Trump from any future federal office would be an unconstitutional bill of attainder. But if Congress has the authority to impeach Trump and if it convicts him and disqualifies him from any federal office, the disqualification would not be a bill of attainder. However, if the Senate does not convict Trump on impeachment, a subsequent act of Congress disqualifying Trump from federal office would be an unconstitutional bill of attainder.

A gray and confusing issue is the invocation by the Articles of Impeachment of Section 3 of the Fourteenth Amendment of 1868. This prohibits any person who has “engaged in insurrection or rebellion against the” United States from holding any federal or state government office. Section 3 was aimed at Confederates who fought against the union during the Civil War. Why this is included in the Articles of Impeachment is puzzling because some historians argue that Section 3 is an alternative to impeachment.

Congress could possibly disqualify Trump from both federal and state government offices by a simple majority vote under Section 3. This might not be a bill of attainder. However, Congress severely weakened Section 3 within a few years of its ratification and has apparently used it only once since the 1860s when the House refused to seat Victor L. Berger, a Milwaukee socialist, in 1919 because of his conviction under the Espionage Act of 1917 for opposing the U.S. entry into World War I. The U.S. Supreme Court overturned his conviction, and Berger was seated in the House after his constituents reelected him in 1922. Given this history, the U.S. Supreme Court might regard a Section 3 disqualification from office as a bill of attainder. Furthermore, Section 3 appears to apply only to persons who actually engage in insurrection or rebellion, not to persons who advocate insurrection. So, Section 3 is uncharted constitutional territory.

Yes, a bona fide House impeachment and Senate conviction is not a bill of attainder. This is one reason why the Constitution explicitly states that an impeachment conviction can go no further than removal and disqualification from any federal office. If Congress were to go beyond those two civil punishments, it would violate the prohibition of bills of attainder.

There appears to be no possibility that Democrats will convince 17 Republicans to vote to convict Trump. Conviction requires a two-thirds vote of the Senate, namely, 67 votes.