Roberts rules

Today comes word via Senator Rand Paul that Chief Justice Roberts will not preside over any Senate impeachment trial of President Trump: the text of the Constitution only requires the Chief Justice to preside over the trial of “the President.” Trump is no longer “the President.” Roberts’s presence is therefore not called for.

Trump is of course a private citizen at this point. The constitutional text does not appear to contemplate the impeachment or trial of a private citizen, although impeachments of former official took place once in the eighteenth century and once in the nineteenth. Former Fourth Circuit Judge Michael Luttig argues in this Washington Post column that a Senate trial of Trump would be unconstitutional.

Judge Luttig argues: “Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment.” The Constitution’s impeachment clauses presuppose that impeachment and removal of a president happen while in office.

As an example, Judge Luttig cites Article II, Section 4: “The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”

He also cites Article I, Section 3, which reads in part: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

Note that “removal” accompanies “disqualification.” If a private citizen can no longer be removed, can he simply be disqualified? Perhaps, but disqualification is conjoined with removal.

Judge Luttig concedes that some scholars argue that Congress can impeach a former president from two instances in which early Congresses impeached “civil officials” after they had resigned their public offices — the impeachments of Sen. William Blount in 1797 and the impeachment of Secretary of War William Belknap in 1876. He further concedes that these cases “provide some backing for the argument that Congress can conclude that it has the power under the Constitution to impeach a former president.” Please note that the case of William Blount — summarized here by the Senate — is ambiguous at best in relevant respects. (Alan Dershowitz rightly ignores it in his column quoted below.)

Princeton Professor Keith Whittington argues that the impeachment power extends to former officials in the Wall Street Journal column “Yes, the Senate can try Trump.” Whittington, however, does not even try to reconcile this alleged power with the text of the Constitution. He relies exclusively on “centuries of practice and understanding.” The letter signed by 150 constitutional law scholars on impeaching former officers makes a similar argument without addressing the limitations imposed by the constitutional text.

The eminent Harvard Professor emeritus Alan Dershowitz qualifies Judge Luttig’s caveat and Professor Whittington’s historical argument:

No former official has ever been convicted by the Senate, and only one has been impeached. Secretary of War William W. Belknap was indisputably guilty of numerous impeachable offences, to which he confessed as he resigned his office hours before the House unanimously impeached him in 1876. The Senate voted in favor of a procedural motion affirming its jurisdiction to try Belknap’s impeachment. But two dozen senators who believed he was guilty voted to acquit on jurisdictional grounds. A close vote nearly a century and a half ago doesn’t establish a binding precedent.

Judge Luttig concludes his column with the proposition that “[i]n the end… only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him.” Judge Luttig does not address the question of timing. It is difficult to see the issue reaching the Supreme Court before Trump is tried. It certainly is not contemplated in the current schedule setting the trial to begin on February 9. The strength of the argument based on the text of the Constitution should provide sufficient basis for Republican Senators to vote against conviction and thus moot the issue before it reaches the Supreme Court.

Publius addresses the impeachment power in Federalist numbers 65 and 66. Early in the discussion Publius describes the subjects of the impeachment power as pertaining to “those offenses which proceed from the misconduct of public men…They are of a nature which with peculiar propriety be denominated POLITICAL[.]” If the issue were to be raised after conviction, the Supreme Court may well defer to the Senate’s resolution of its power as a “political question” unfit for judicial resolution.

The case law supports this inference (footnotes omitted):

It was long assumed that no judicial review of the impeachment process was possible, that impeachment presents a true “political question” case, i.e., that the Constitution’s conferral on the Senate of the “sole” power to try impeachments is a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions.

In the Judge Nixon case, the Court held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable “political question.” Specifically, the Court rejected a claim that the Senate had departed from the meaning of the word “try” in the impeachment clause by relying on a special committee to take evidence, including testimony. But the Court’s “political question” analysis has broader application, and appears to place the whole impeachment process off limits to judicial review.

What a wonderful way to kick off the Harris-Biden era.