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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThere are many reasons it's constitutional to convict an impeached former president. Here's one:
Some more delusional Republicans are now trying to avoid voting to convict Trump in a Senate trial on the grounds that it is supposedly unconstitutional to conduct impeachment proceedings over a former president.
But here's the thing: The Constitution provides that a sitting president is removed from office immediately upon conviction by the Senate. This is self-executing and requires no additional action by the Senate. Removal is automatic and instantaneous.
The Constitution also allows, but doesn't require, the Senate to disqualify a president from ever again holding federal office..
Because this second vote for disqualification is taken AFTER the vote on conviction and removal this obviously means that, at the time that second vote is taken, the impeached president is no longer president. Therefore, the Senate is voting to penalize a former president.
Why does that matter? Because it is proof positive that the Founding Fathers fully anticipated that impeachment proceedings did not have to halt for all time after a president is no longer president. The Senate is permitted to continue its proceedings even after that person is out of office, just as it does when it votes to disqualify an officer it just convicted and removed.
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Atticus
(15,124 posts)excuses that we will hear. "He's already gone so what's the point!" is another.
As someone else put it, they are "frantically looking for a desk---any desk---to hide under".
StarfishSaver
(18,486 posts)
Gothmog
(179,870 posts)I do not believe that this is even a close question https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089
“We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation,” wrote the signatories, which include the co-founder and other members of the conservative Federalist Society legal group. “But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”
More than 150 legal scholars signed on to the letter, which was obtained by POLITICO. They include Steven Calabresi, the co-founder of the Federalist Society; Charles Fried, who served as solicitor general under Ronald Reagan and is now an adviser to the Harvard chapter of the Federalist Society; Ilya Somin, a law professor at George Mason University and adjunct scholar at the libertarian Cato Institute; and Brian Kalt, a law professor at Michigan State University and leading scholar on the specific question of whether former officials can be impeached.
The House impeached Trump last week, for the second time, in a 232-197 vote for "incitement of insurrection” following the attack on the Capitol by a pro-Trump mob that left five people dead. As the impeachment process moves into its next phase in the Senate, the signatories of the letter are seeking to counter an argument that has been gaining steam among some Republican senators: that it would be unconstitutional for the Senate to hold an impeachment trial for Trump now that he is a private citizen.
StarfishSaver
(18,486 posts)But, of course, that won't matter to Trump's defenders... It's about all they've got left
treestar
(82,383 posts)
JPbelgium
(89 posts)So if they really think it is "unconstitutional" , they should not take part in the debates and votes...
StarfishSaver
(18,486 posts)They should just stay away and not vote at all ...
SoonerPride
(12,286 posts)Do a thing and then later on let SCOTUS say it’s Unconstitutional.
Tell ya what republicans, let’s go ahead and convict him and if Trump wants to take that to SCOTUS we will have that argument then.
You nor I are arbiters of what is and isn’t constitutional.
kentuck
(115,407 posts)If it is unconstitutional to have a trial of a former President, then it follows, it would be unconstitutional to pass a resolution preventing him from holding office in the future.
Both would be penalties of a "former" President.
StarfishSaver
(18,486 posts)As soon as he's convicted, he becomes a former president, so if the Senate has a right to penalize former presidents, they have a right to try one.
kentuck
(115,407 posts)But I have to believe that many Senators do not want him to run in 2024 and would be open to a vote, with mostly Democrats, penalizing him so that he cannot run again. It would be a contradictory position for them, for sure.
kentuck
(115,407 posts)How could it be "unconstitutional"?
It would be whatever the House and Senate says it is and cannot be ruled "unconstitutional" by any Court. Would that not be correct?
StarfishSaver
(18,486 posts)within the bounds of its Constitutional powers.
For example, the Constitution limits the penalties the Senate can impose to removal and disqualification. If the Senate convicted a president and then revoked his right to vote, that would be beyond its Constitutional powers and the Court could surely step in and say so. By the same token, the question of whether the Senate has the power to convict and disqualify a former president is an issue the Court could resolve.
Now, if the Court ruled that the Senate does have that power (which I'm sure it would) a president who was convicted and disqualified couldn't then go to court to contest the Senate's decision to disqualify him. THAT would be a matter fully within the bounds of Congress' impeachment power and something the Court would not involve itself in.
In short, the Court won't interfere with how the Congress colors within the lines, but it can tell them where those lines are.
Does that make sense?
kentuck
(115,407 posts)Thanks! I was having another discussion on another thread to a similar thought.
Hortensis
(58,785 posts)as their argument at the first impeachment trial -- that, yes, Trump was guilty but so what?
FBaggins
(28,706 posts)The short answer to this entire debate is as simple as the definition of what constitutes an impeachable offense.
Just as that is "whatever a majority of House members say it is", whether or not it is constitutional to convict an impeached former president depends on whether there are enough senators who say that it is. If 34 Republicans say that it's isn't constitutional... then that's the effect. And there is no appeal (other than to those same senators).
StarfishSaver
(18,486 posts)The Court can't/doesn't get involved in substantive impeachment matters, but it can determine whether an action is with the Senate's impeachment power.
Congress can decide on its own whether a particular action is an impeachable offense. But it cannot decide whether it has the constitutional right to impeach someone. That's up to the Court.
FBaggins
(28,706 posts)Too easy for them to say that it's a political question left entirely to the Senate.
Nor... were they to rule on the merits... do I see much chance of victory given the current court.
StarfishSaver
(18,486 posts)How Congress exercises power given it under the Constitution is a political question. But whether the Constitution gives Congress the power to do something is a constitutional issue that can only be resolved by the courts.
For example, if the Senate were to convict a president and then decide to revoke his right to vote or take away his citizenship as a penalty, the Court could step in and prevent it because such a penalty is not within the impeachment power set out in the Constitution. Or if the House tried to impeach the Governor of Michigan, the Court could get involved and hold such an act unconstitutional.
By the same token, the Court could rule on whether impeaching and convicting a former president is within the Senate's impeachment power. If it isn't, doing so would be an unconstitutional act, not a political question.
As I said in another thread, it's like a coloring book: Congress can pick the crayons and colors, but it can only color within the lines the Constitution draws - and while the Supreme Court has no power to tell them what colors or crayons to use or how dark or light they color - that's the equivalent of a political question - but they can tell them where the lines are and make make them stay inside of them.
FBaggins
(28,706 posts)The court has show zero interest in evaluating it even though it has been debated for decades.
All three branches are involved in applying the constitution... not just the courts.
StarfishSaver
(18,486 posts)You don't seem to understand the difference between substantive and procedural constitutional law and analysis.
But under your "analysis," the Senate could throw AOC out of Congress and disqualify her from ever running for office again and as long as they call it an "impeachment," the Court would let them do it and have no power to stop them. That's not how any of this works.
One thing you have correct is that all three branches are involved in "applying" the Constitution. But what you're missing is that each branch has its own lane and the Constitution limits what actions they can take. And only the courts can interpret the Constitution, decide what it means, and tell the other two branches how it may be applied and whether they are allowed to take certain actions under the Constitution.
And if the courts determine that the Constitution doesn't give Congress the right to impeach and disqualify a particular class of person - e.g., a governor or a former president - the Court has the power to stop them from doing it and it doesn't matter whether they committed high crimes and misdemeanors.
FBaggins
(28,706 posts)Sure... if the Senate voted to remove someone from the House the court would smack it down. It would never get to the court any more than the Senate voting to have the sun set in the East tomorrow... but let’s pretend that Trump was still in power and found someone to enforce it.
But the court could/would do that because the Senate tried to do something that it lacked the power to do. If the senate convicts Trump and he tries to appeal it as outside of their powers... the court might take the case (though I doubt it).
But that’s where you have it backwards. If the Senate votes not to convict (or even to dismiss the case) and says that it’s because they lack the power to try someone already out of office... the court had no power to say “oh... no... you can do that if you want. Vote again”
Nor, of course, can you ask them for an advisory opinion.
So we’re right back to my first post. It’s a clever argument... but you have to make to 34 Republican senators. There is nobody else who can hear it.
StarfishSaver
(18,486 posts)I now recall why I stopped trying to explain the law to you a while back. It's a waste of time trying to educate someone whose ignorance of the law is directly proportional to their confidence in their legal expertise and their dogged persistence in lecturing legal experts on the topic - tossing around just enough legal jargon to maybe impress non-lawyers but that anyone with even a minimal amount legal knowledge sees right through as pure gobbledegook.
Believe whatever you like. Perhaps you can try your "analysis" out on someone who doesn't know any better.
FBaggins
(28,706 posts)Entertaining... but transparent.
Come on counselor. Your “case” just fell apart. Do you not even have a plausible argument to attempt to resuscitate it?
Simple question- how do you imagine the court weighing in on this? There are only two scenarios possible (absent convincing republicans to convict of course):
Someone asks the court to weigh in prior to a vote, or 40-50 senators vote not to convict with the rationale that they lack the constitutional power to convict an ex-president and someone asks the court to weigh in.
Which of those can you defend or do you imagine a third scenario?
StarfishSaver
(18,486 posts)Last edited Sun Jan 24, 2021, 09:59 PM - Edit history (8)
with those who seem unwilling to accept them - I will take one more stab at it by answering your question.
Here's one way it could work.
The Senate tries Trump and manages to get a 2/3 majority to convict him. They immediately vote to disqualify him from serving in federal office in the future.
In 2022, Trump runs for the U.S. Senate and wins. On January 3, 2023, the Senate refuses to seat him on the ground that he does not meet the qualifications to serve by virtue of the 2021 Senate impeachment conviction.
Trump immediately brings suit in federal district court for injunctive, mandatory, and declaratory relief against the Senate Majority Leader, Clerk, and Sergeant at Arms, and Doorkeeper of the House, alleging that the Resolution barring his seating violated the 17th Amendment ,of the Constitution as contrary to the mandate that Senators be elected by the people of each State, and Article I, § 3, which sets forth the qualifications for membership of age, citizenship, and residence.
The defendants' response to the complaint is twofold: 1) they argue the court has no jurisdiction over this matter because it involves a political question; and 2) they allege that Trump no longer meets the constitutional qualifications to be a senator by virtue of the disqualification vote and therefore, the Senate had a right to refuse to seat him.
Trump's reply alleges that the disqualification is void. The Senate, he claims, had no right to convict and disqualify him since he was a former president and, as such they had no Constitutional jurisdiction to convict and disqualify him because the Constitution limits impeachment only to sitting presidents.
The district court finds that this case does not present a political question and dismisses his complaint on the ground that the Constitution's disqualification clause applies to both current presidents and former presidents and, therefore the Senate had the constitutional authority over him and could, thus conduct impeachment proceedings and impose the penalties provided for under the Constitution.
Trump appeals the decision, which is upheld by the DC Circuit Court of Appeals.
He appeals to the Supreme Court, which grants cert, and, following the precedent of Powell v. McCormick, in which the Court ruled on the question of whether Congress could refuse to seat an elected Member, takes up the question of whether the Senate can refuse to seat a duly-elected Senator. The issue in the case is whether the justification given for refusing to seat him is sufficient to make him unqualified to serve.
Trump argues the Senate had no right to disqualify him because the Constitution did not give them such power.
The Court rejects the Senate's argument that this is a political question. Finding that while an impeachment cannot be appealed,
it goes without saying that in order to be an impeachment, the process must meet the constitutional definition of impeachment - and it is solely the province of the Court to determine what that definition is. A congressional action that does not meet the constitutional requirements of an impeachment does not become an impeachment nor does it become non-reviewable simply because Congress calls it an impeachment. The Court rules that this case doea not involve a political question and moves to the second issue.
The Court reviews the Constitution and concludes that it gives the Senate power to impeach, convict, and disqualify a former president. Among other things, the Court holds, the fact that immediately upon conviction, a president is removed means that any consideration of disqualification involves a former president and, therefore, the Senate has the power to retain jurisdiction over an impeached former president. Thus, it concludes, the Senate had a constitutional right to disqualify and, therefore, the disqualification was Constitutionally valid. Based on that interpretation of the Constitution's impeachment clause language, the Court upholds the Senate's refusal to seat Trump as the junior senator from Florida on the grounds that he was disqualified by the Senate.
That's just one possible scenario.
FBaggins
(28,706 posts)Perhaps when debating whether or not your argument has to be accepted first by republicans... you avoid a hypothetical that assumes you’ve already convinced them?
Note that the hypothetical you were asked for already accepted that convincing republicans to convict moots the question.
StarfishSaver
(18,486 posts)Someone asks the court to weigh in prior to a vote, or 40-50 senators vote not to convict with the rationale that they lack the constitutional power to convict an ex-president and someone asks the court to weigh in.
I answered your question - which was "how do you imagine the court weighing in on this?" not "whether or not your argument has to be accepted first by Republicans" in great detail. Your newly-thought-up question not only wasn't what we were discussing, it also is completely beside the point, since the only way the Court would - to use you words "weigh in on this" - would be after the Senate convicted and disqualified Trump. Otherwise, there'd be no reason to interpret the language of the Constitution - the point of the OP and this entire discussion - in the first place. So your little caveat is just an irrelevant red herring.
Pretending you asked a different question than you actually asked won't cut it, but your attempt to change the subject at least demonstrates that there's a limit on how deep a hole you're willing to dig trying to debate Constitutional law with me.
Have a nice evening.
FBaggins
(28,706 posts)I said at least twice that the court could get involved AFTER a conviction if someone claimed that they lacked the power
The entire debate was over whether there was some way to resolve constitutionality without convincing republicans first. That was my very first post and you still haven’t dealt with it.
Even the post you just copied while lol-ing explicitly says “ absent convincing republicans to convict of course”
StarfishSaver
(18,486 posts)And this discussion was about more than "resolving constitutionality without convincing republicans first."
But that said, I just rethought something I said in my last post - that the only way Constitution would have to be interpreted is if Trump were convicted and disqualified. However, there is a way this issue could be addressed and ruled on during the trial by the Chief Justice.
It's possible - actually very likely - that a Republican Senator will file a Motion to Dismiss at the beginning of the trial on the grounds that the trial is unconstitutional because the Senate has no authority to try a former president. It's also possible that the issue could again be raised at the end of the trial prior to the vote to convict or acquit.
The Chief Justice would rule on that question as a matter of law, deciding whether or not the Senate's power to conduct an impeachment trial extends to trying a president after the end of his term or if that power is limited to only to sitting presidents. That ruling could be reversed by a majority vote of the Senate, but it can't be appealed to a court.
If the Chief Justice rules that such a trial is unconstitutional and the ruling is not reversed by the Senate, the proceedings end. If the Chief Justice rules that the trial is permitted by the Constitution and the Senate acquits, that's the end of it. If the Chief Justice rules that the trial is permitted by the Constitution and the Senate convicts, Trump will either accept the disqualification and go away or he can later appeal it to the courts under certain circumstances, such as the one I set forth in my example.
In the latter case, the Chief Justice's ruling, while not dispositive or binding on any court, would certainly carry a lot of weight in a later court case if Trump were to appeal a conviction and disqualification. And whether he's convicted or acquitted, such a ruling interpreting the constitutionality of trying a former president, would no doubt be given considerable weight in any future Senate trial of a former president.
So there could be an opportunity to obtain a finding of whether a Senate trial of a former president is constitutional without having to convince a majority of Republican senators to convict.
FBaggins
(28,706 posts)It's at least a decent moot court argument... but I think it still falls.
As for Roberts, the senate rules leave some ambiguity "in the case of a presidential impeachment" (which this was).. but the constitutional text is clear: "When the President of the United States is tried, the Chief Justice shall preside". He isn't the president... so Roberts won't preside. If the presiding officer were to send the CJ the normal letter - Roberts would almost certainly decline (and might make things worse by opining that case is now moot).
Of course, that changes the argument somewhat. A ruling by the CJ would carry some weight with other courts. Though, as you noted, not in a binding way, and, as I pointed out, it can't get to some other court unless the argument is now moot because 2/3 of voting senators agreed already). But we can still imagine something similar with Harris, Schumer, or some other presiding officer making a ruling and the full senate failing to overrule (not a sure thing, but that's another conversation)
If the Chief Justice rules that the trial is permitted by the Constitution and the Senate acquits, that's the end of it.
That's the "end" of the attempt to dismiss the case as outside of their jurisdiction... but it isn't the end of the argument. It in no way binds an individual senator who disagrees (just as he lacks the ability to tell any of the other eight justices how to rule). Nothing keeps 34+ senators from voting against conviction on the basis that they don't think the senate has the ability to try an ex-president (even if the ruling were from Roberts). There were senators who voted to dismiss the Clinton impeachment who were overruled... yet still voted to acquit because they didn't agree that the claimed offenses were impeachable. They clearly were impeachable by the only precedent that mattered (the majority House vote to impeach), but that didn't take away their ability to disagree and vote based on that disagreement.
So we're still right back at the beginning. The OP is a very clever (and to me persuasive) take on the question. It could definitely swing a moot court round with that as the topic. The problem remains that, just like moot court rounds or actual appellate court arguments, you need to know who you are making the argument to (i.e., "know your judge"
. Not so long ago, arguments would be tailored to swing Justice Kennedy. You already knew that you likely had four votes in your pocket and probably four votes against you. All that really matters was whether you gave Kennedy an argument that he would buy.
In this case, the argument can only be made to Republican senators (and perhaps a handful of Democrats). Unless many of them agree that the Senate has the power to hear the case in the first place... there will be no conviction. And there is no way to appeal that decision.
On edit. I see that the line was "and the senate acquits" rather than "and the senate agrees" (as in 51 votes to uphold the ruling).
Given that... where is it that we disagree? I've already said multiple times that if there are 67 votes to convict then they obviously have already agreed with your argument (or some other that gives them jurisdiction). The point of the whole exercise is to force republicans to vote on the record re: trump's actions. In order to do that we have to narrow it down to guilty/not. The OP doesn't do that. It doesn't keep them from saying "I might have considered conviction if the constitution allowed it"
intelpug
(159 posts)Just a question, I am not a lawyer but can usually grasp their reasoning due to serving on county advisory committees which often have to be shepherded through by the county attorneys office. Now, as far as the question, If a president is removed by the senate which as you say is self executing after the vote, then move to disqualify him which seems in the context to be optional, would the court say the two are mutually exclusive or would one action be contingent upon the other? ea since the senate just removed him, they can as part of the same action also penalize him,. Or could they reason that since he was already removed by the action of the voters not the senate then the senate may not exercise the option of a penalty since they were factually incapable of carrying out the removal in the first place.
StarfishSaver
(18,486 posts)They are not mutually exclusive but conviction/removal is the condition precedent for disqualification. In other words, they are sequential and disqualification cannot occur without a conviction. It's like a criminal trial ... a conviction is required before the judge or jury can mete out a punishment. If the defendant is acquitted, the trial is over and they don't move to the penalty phase. But if they're convicted, then the appropriate penalty is applied. Just as in the criminal justice system where the jury can't sentence a person to prison if they aren't first convicted, the Senate cannot disqualify a president from future office unless they are convicted of the charges for which they were impeached.
This is all set out in the Constitution, so they must follow those rules. The Constitution gives the Senate the right to penalize a convicted president by disqualifying him from holding office in the future, but they are not required to do so.
As for being "removed by the action of the voters," that's not an issue or a factor. For example, if Trump had been impeached on November 1, lost the election on November 3 and then tried and convicted by the Senate on November 10 while he was still in office, it could be argued that he was about to be removed by the action of the voters, but the conviction would still remove him automatically as soon as the vote happened.
Does that answer your questions?