Dear Senator Paul,
Last week you raised a point of order that declared the February 8 impeachment proceedings to be unconstitutional. Forty-five senators agreed with you, all republicans. Failing to achieve the requisite majority, it failed.
The basis of your motion was that it was unconstitutional to impeach a president who no longer held his office. You asked, rhetorically I hope, where in the constitution did the senate have the power to try a former president for conduct while in office? You answered your own question, stating that nowhere in the constitution was the senate granted that power.
As far as persuasive arguments go, rhetorical or otherwise, this was pretty weak. While it is true that the constitution does not explicitly permit post-presidential impeachment trials, it is also true that there is no constitutional prohibition against such trials. In short, my responsive argument above is just as valid as yours, and my argument stinks.
So how do we resolve this impasse while keeping faith with the constitution? We do so by attempting to interpret the meaning of this constitutional provision and squaring it with the facts that we know.
Constitutional interpretation is an often contentious issue among legal scholars, attorneys, and jurists. For instance, there are those who take the view that the language of the Constitution has a plain meaning and should be strictly applied to all questions. This would be the “dead” Constitution theory of Orginalism, which holds that the provisions of the Constitution should be strictly adhered to. You saying that the Constitution provides no mechanism for post-presidential impeachment trials is an Orginalist interpretation.
Others take a more progressive interpretive view of the Constitution. Advocates of this approach concede that while the document’s words matter, these words also contain transcendent principles that are applicable to today’s issues, some of which were totally unimaginable in 1787. This would be the so-called “living” Constitution school of interpretation. This is an approach that I generally favor.
There are numerous approaches that have been advocated between these two extremes. One I think useful in clarifying the issue you raised in your motion is a modified Originalist approach, the public understanding of the contents of the Constitution as written in 1787 and through ratification. This approach might provide us with a more concrete understanding of the document you purport to rely on.
Let’s begin with those nettlesome words, “high crimes and misdemeanors.” Sounding in criminal law, these words apply to the political acts of those holding public office. If a government official commits a non-criminal act, impeachment is the process to hold him or her accountable. For example, if a high government official deliberately and knowingly acts contrary to law or court order, she might not be committing a “crime” per se but could be investigated as to her fitness for public office. If as a result of this investigation evidence is discovered calling into question her fitness for office, she could then be impeached, tried, and if found “guilty” removed from office.
Impeachment is a civil, “political” act, not criminal. The words “high crimes and misdemeanors” were first used in 1386 in the impeachment of the Earl of Suffolk, who was accused of converting public funds for his personal use. The subtext of this parliamentary process was opposition to the King’s demands for funds in support of an invasion of France. Since the parliament could not impugn acts of the Sovereign, it had to instead focus on his ministers. That doesn’t mean that the Earl was unfairly accused, there was great legitimate dissatisfaction with him. As a result of the impeachment the Earl resigned his office, later to return and act more egregiously which in turn led to his subsequent exile.
Thus began the English process of impeachment. It was a means by which the legislature could hold the Sovereign, through his ministers if facts warranted, to account. As difficult as it is in our partisan polarized political climate to realize, impeachment was an infrequently used process. But it was used when necessary and by 1787 the framers of the Constitution were well familiar with the process.
It might be useful to briefly mention the impeachment of the English Governor-General of India, Warren Hastings, for alleged misconduct and personal enrichment during his term of office. He suffered numerous attacks on his official conduct, and in 1785 he resigned his office and headed home to England. It wasn’t until 1787 - two years after leaving his office - that he was impeached by the Commons and prosecuted by Edmund Burke. The impeachment trial was sporadically conducted over seven years and resulted in Hastings’ acquittal.
The key take away here is that a high official was impeached and subsequently tried beginning two years after he left office. The overall history of English impeachment processes as well as the Hastings impeachment were not lost on the framers convened in Philadelphia to invent a new form of government.
This brings us to the Constitutional Convention, specially to July 20, 1787. On that day, there was a debate (on-going) over what grounds a president could be impeached and where he could be tried. By then it was agreed that the new House of Representatives would actually impeach a president (or judge for that matter) but the trial’s venue was in dispute. Some favored the Supreme Court, others a special commission, while still others the Senate. As you know it was eventually decided that the Senate would try impeachments.
On that day in July, there was a unique focus relevant to today’s concerns - what if a president corrupted the electors who elected him? George Mason thought that whatever the grounds for an impeachment, these kinds of political ”crimes” must be included. He met opposition from Charles Pinckney who opined that if a president were elected through corrupt means he could be dealt with, and if he was unsuccessful in his campaign then he lost and was of no concern to anyone.
Mason argued that Pinckney’s solution was not adequate. Mason raised the specter of an incumbent president achieving re-election through corrupt means, which could arguably have occurred multiple times in the absence of term limits. And what would happen if an incumbent attempting to be re-elected unsuccessfully attempted to corrupt the electors? Letting such a president go was unacceptable to Mason and many other framers.
In such an instance, when could he be held accountable for for his corrupt actions? Reference was made to a possibility that such a president might not be accused until after he left office and would thus escape accountability. Viewing such an act as a crime against the state, how could the interests of the state be vindicated in these instances unless via the process of impeachment? No doubt the framers had Hastings’ situation in mind when discussing this issue.
Eventually, on September 8, near the close of the convention, the language “high crimes and misdemeanors” as understood in its historical and precedential English roots was incorporated along with Treason and Bribery as grounds for impeachment.
Using this brief (and it was brief) history relevant to the present matter before you, let’s look at the facts before us:
The House of Representatives impeached Donald Trump on January 13, 2021 while he was still in office;
The Senate Majority Leader Mitch McConnell said that no Senate impeachment trial would commence until after Trump left office (implying an understanding that a trial would be conducted);
Mr. McConnell asked for a two-week delay so that Mr. Trump‘s legal team could have time to prepare, further signaling that it was proper for a trial to take place;
The one Impeachment Article contains a charge that clearly fits the “political crimes” envisioned by the framers (indeed, it eerily mirrors the concerns raised by Mason on July 20, 1787); and,
There is American precedent for an impeachment of a resigned office holder, for example the 1876 impeachment of Secretary of War William Belknap who had resigned his office before the House acted.
In these instances where an impeachment is brought against a former officeholder it is well to recall the admonition of the late law professor Raoul Berger: impeachment in such instances is not to punish the individual but is to secure the state by disqualifying him from holding future office.
Such is the case here. Given the public understanding of the history and use of the impeachment process, along with precedents of using this process against former office holders, along with the public understanding of this specific process, coupled with making the state more secure, your argument of unconstitutionality is wholly without merit.
Respectfully,
Geoffrey A. Schoos, Esq.
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