Then US President Donald Trump speaks to members of the media before boarding Marine One on the South Lawn of the White House in Washington, DC, on Jan 20, 2021. (AL DRAGO / BLOOMBERG)
The US Senate begins Donald Trump’s second impeachment trial on Tuesday with a fight over whether the proceeding is constitutional, as a number of conservative lawyers reject the defense team’s claim that a former president can’t be convicted of a crime by Congress.
Republican senators have advanced the constitutional question as the main justification for acquittal. Most of them have avoided directly defending Trump’s actions leading up to and on the day his supporters stormed the US Capitol Jan 6.
The Senate will face the issue head on as the first step in the process, with four hours of debate scheduled Tuesday on the constitutional question, followed by a simple majority vote, under rules negotiated between Senate Majority Leader Chuck Schumer and Republican leader Mitch McConnell.
The Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds.
Bruce L. Castor Jr. and David Schoen, Donald Trump's defense lawyers
Assuming the constitutional question will fail if all 50 Democrats vote that it is appropriate to try Trump, then House impeachment managers and Trump’s defense team each will begin up to 16 hours of presentations on their cases on Wednesday. At least 17 Republicans would have to vote to convict Trump to reach the needed two-thirds majority.
Republicans who argue the Framers never intended impeachment to be used as a cudgel after a president has re-entered private life are getting push-back from some prominent conservative legal experts, including Washington lawyer Charles J. Cooper.
Trump defense lawyers Bruce L. Castor Jr. and David Schoen assert that the Senate has no jurisdiction to try citizen Trump, saying that the Constitution offers only removal from office and disqualification from holding future office as the penalties for impeachment.
“Conviction at an impeachment trial requires the possibility of a removal from office,” the lawyers wrote in a 75-page trial brief filed Monday. “The Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds.”
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The founders could have explicitly included a provision in the Constitution allowing for the impeachment of a former president but didn’t, Castor and Schoen argue. Allowing the Senate to proceed with Trump’s trial means any former president can be impeached – even if they’re dead, they say.
Forty-five of the Senate’s 50 Republicans, including McConnell, indicated support for that argument in a Jan 26 procedural vote, though McConnell and some others later said they merely wanted to wait for a debate on the issue to make a determination.
The nine House managers serving as Trump’s prosecutors say allowing a president to avoid accountability simply by leaving office would create a dangerous precedent and “perverse incentives” for presidents who sought to keep power by subverting election results. The Framers never intended a “January exception” to impeachment, the managers said in their trial brief.
Trump faces a charge of incitement of insurrection for his actions and remarks leading up to the Jan 6 attack on the US Capitol
“It is unthinkable that those same Framers left us virtually defenseless against a president’s treachery in his final days, allowing him to misuse power, violate his Oath, and incite insurrection against Congress and our electoral institutions simply because he is a lame duck,” the managers wrote.
‘Fight like hell’
Trump faces a charge of incitement of insurrection for his actions and remarks leading up to the Jan 6 attack on the US Capitol. He held a rally that day in which he told supporters to go to the building and “fight like hell” as Congress was meeting to certify the November election results that gave the White House victory to President Joe Biden.
Trump had claimed for weeks beforehand that the election was “stolen” from him and that his supporters needed to be “strong”.
READ MORE: Trump impeachment defense to dispute process, incitement charge
Trump’s attorneys said that presidents who have left office can still be convicted in state or federal court and would have to face the judgment of the electorate again if they chose to return to office.
Cooper wrote in a Wall Street Journal opinion article published Monday that legal thinking has “matured substantially” since the senators’ test vote and “exposed the serious weakness” in their reasoning.
Cooper, whose clients have included Trump national security adviser John Bolton and attorney general Jeff Sessions and recently represented House Republicans including Minority Leader Kevin McCarthy in a suit against Speaker Nancy Pelosi, said the penalties in the Constitution amount to a sentencing range, from a mandatory minimum of removal to a maximum of permanent disqualification from office. The Trump team’s interpretation “defies logic,” he said.
Democratic Senator Tim Kaine said he was “pessimistic” Cooper’s argument would sway any of his Republican colleagues.
‘Robust debate’
Republican Senator John Thune, a member of GOP leadership, said he also didn’t know of any of the 45 senators who voted the trial was unconstitutional who would change their votes. But he said he doesn’t think there’s been a lot of study on the question yet.
“There’s going to be a fairly robust debate about the constitutionality and whether or not the Senate has jurisdiction,” Thune said. “And I think there are a lot of us who are going to listen to that and weigh it.”
At least 17 Republicans would have to vote to convict Trump to reach the needed two-thirds majority
READ MORE: Trump impeachment defense squeezed by team remake on trial eve
Michael McConnell, a former George W. Bush-appointed federal appeals judge who was widely discussed as a potential Republican Supreme Court pick, also wrote a Washington Post opinion article published last week saying the Senate trial was “unquestionably permissible” given that the House impeached Trump while he was still in office. Steven Calabresi, a co-founder of the influential conservative Federalist Society and Charles Fried, a former Ronald Reagan solicitor general, joined in a statement from legal scholars backing the trial’s constitutionality.
While the Senate has never tried a president after he’s left office, it has set a series of precedents for trying other officials no longer in office.
Congress invoked impeachment for the first time only a decade after the Constitutional Convention against a former office-holder. Senator William Blount was tried in 1797 on an impeachment charge of conspiring to let the British take Spanish-controlled territories in Florida and Louisiana, even though the Senate had already expelled him. He was acquitted on separate grounds that as a member of the legislative branch he didn’t qualify as an “officer” subject to impeachment.
In 1876, the Senate voted 37-29 that it could try former Secretary of War William Belknap on corruption charges even though he had resigned before the House impeached him. He was later acquitted.
Impeachment of former officials was also common in England and under some state constitutions at the time Founders wrote the provision. The 1787 Constitutional Convention took place as the British Parliament was in the process of impeaching and trying Warren Hastings, the former governor-general of India.
Trump’s defense team argued that English practices at the time of the founding aren’t relevant. In their trial brief, they said, “We chose not to remain British after all.”
