I just watched a mini-debate between Steve Vladeck and Ross Garber on CNN that directly addressed whether or not the Senate could convict private citizen Donald J. Trump. Vladeck argued that the Senate could and Garber argued that the Senate couldn’t. So, who is right? Here is the really tough and annoying answer: This question is actually unresolved. As Vladeck and Garber both outlined, while the House and Senate has impeached and held trials (respectively) for former federal officials, both cases ended with acquittals and citations to the Senate’s lack of jurisdiction.
That outcome, along with the plain reading of the Constitution, seems to tip the hand in Garber’s favor and should precipitate the Senate dismissing the case against Trump, right? Wrong.
While it’s true that this debate is sort of a jump ball, when you look at the history behind impeachment and where we pulled it from, it is more like a jump ball between Shaquille O’Neal and…me. The history of impeachment, drafting of the Constitution, and even the Articles of Confederation all heavily, heavily suggest that the Founders wanted to allow for the impeachment of former presidents.
Something Garber briefly mentioned was that we pulled the impeachment process from the British. They began impeaching people in 1382, so by the time the American Revolution came around, we were pretty familiar with the whole song and dance. Garber, Vladeck, and Fredo Cuomo all chuckled at the fact that the British would impeach someone, remove them from office, and then punish them some more afterwards (sometimes even with death), but they left out a pretty important fact: In the British government, Parliament could impeach private citizens. Moreover, Parliament also explicitly allowed for “late impeachment.” In other words, they were cool with the Parliament impeaching a public official (usually someone who worked for the King) and holding a trial after they left office, which is the direct situation we’re facing now.
In addition, it is not like impeachment was just us plagiarizing the Brits. We included additional requirements (such as the two-thirds majority for conviction) and we rejected others (such as the severe punishments mentioned above). If the Founders had intended for us to also reject the idea that a public official could be tried after they left office, why didn’t they say so?
The argument gets stronger when you look at the State constitutions from the time of the founding. In Virginia and Delaware, public officials could not be impeached until they left office. A fun little note of history: The Virginia legislature actually looked into impeaching Thomas Jefferson after his term as Governor of Virginia was up, but ultimately declined. They also impeached assemblyman Jonathan Fassett for (get this) joining up with a rebellion, and he was tried and convicted after being booted out of office. Pretty strong evidence for late impeachment.
Prior to the formulation of the Republic, almost all of the colonies practiced impeachment and every single one allowed for the impeachment of private citizens. Though there were differences between each constitution, many explicitly allowed for an impeachment and trial of a public official after they left office. Not a single state constitution forbids the situation we are looking at right now in 2021, or as I like to say, 2020 Part II.
Even when we took our first crack at the Constitution via the Articles of Confederation, the stand-in for impeachment (the actual word is never used) allowed for punishments of officials who had left office.
When you look to the actual writings of the Founders, you seem to find some evidence that they were against late impeachment, but you can only reach that conclusion if you aren’t armed with all of the context provided above. In Federalist 39, James Madison wrote:
In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office.
In many of the Federal Papers, the writers were all trying to explain why the Constitution was, in fact, better than the British system, and a lot of that consisted of them explaining how the President isn’t a king. Here, Madison was trying to explain why the President of the United States was held to greater account than most “magistrates;” he was saying, “Look, we also allow him to be impeached while he’s in office.” He was adding to the idea that a public official could be impeached after they left office, not subtracting from it.
Obviously, you could leave all of this history aside and simply read the plain language of the Constitution and conclude that it says only an official currently in office can be impeached and tried. But the language of the Constitution never says anything about when an impeachment can occur and whether or not it immediately has to stop. In addition, the Constitution only talks about when a public official can be removed. Obviously, if an official is currently not in office, then they can’t be removed; the rest of language regarding punishment can still stand on its own.
And this also gets to a point Vladeck made: If impeachment can only occur while someone is in office, then the punishment - barring them from running for office again - is almost meaningless; anyone who is threatened with a conviction in the Senate could simply resign and not face any consequences.
Ultimately, I think the history is pretty clear: President Trump can be tried for his impeachment after he leaves office next week. But I think it’s also worth noting that impeachment as a mechanism for holding the President to account feels a little silly at this point. The more you read about impeachment, the more you begin to realize that it is an antiquated process that we took from the British, who first thought it up in the 14th Century and then used it to try the King’s friends. Given that many other governments around the world allow for their public officials to actually be indicted, impeachment does feel a little outdated. But changing it would mean amending the Constitution, so let’s deal with one thing at a time.
A really quick note on polls. Am I still in a fight with them? Sort of. But, here are the final polling averages for the two Georgia Senate seats:
Here are the final results:
That is really close. I think what we are possibly learning is that if Donald Trump is not on a ticket, polls generally tend to get things right. But time will tell.
Happy three-day weekend my babies.