January 25, 2021

On the Upcoming Trial of Donald Trump

 Donald Trump is to be tried once again by the Senate. There is much confusion—some of it intentionally generated by Trump partisans—about the legitimacy and consequences of such a trial. I hope to clear up a few matters here.

Impeachment and trial are authorized by the Constitution. For our purposes, the most important passage occurs in Article I, Section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

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; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 4 provides that:

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.

The above section enumerates offenses that may trigger impeachment and specifies that a person impeached and convicted is necessarily removed from office. (Donald Trump’s impeachments have both been enacted under the “high Crimes and Misdemeanors” provision.) Removal from office is the only obligatory penalty, but the punishments of Article I (“disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”) may be imposed. It is almost certain that, were Mr. Trump to be convicted by the Senate, his ability to hold (presumably federal) office would be restricted, as the certainty of not running against him in the 2024 presidential race is an incentive to convict for at least some Republican senators. The ex-president could also have his pension, allowances, and Secret Service protection terminated, but a separate vote would be required to impose such penalties.

Under the circumstances, Mr. Trump will not be removed from office, as he is already out of office. He would not be the first federal official to be impeached and tried after having left office, however. Secretary of War William Belknap was impeached minutes after his 1876 resignation and tried by the Senate. The vote for conviction was 35–25. The Senate had voted 37–29 that a trial could be held, but arguments that such a trial was unconstitutional contributed to a not guilty verdict. In any case, the Belknap affair offers a precedent for trying a former officeholder. Prominent Republicans are arguing that a trial of Donald Trump is unconstitutional, and this argument will undoubtedly affect the Senate vote in the current instance.

It has been widely reported that conviction of the ex-president will require the votes of at least 17 Republican senators. It is assumed that all 50 Democrats and independents will vote for conviction, and that 17 Republican votes will be needed to reach the 67 votes required for conviction in the 100-person Senate. This is not quite true, however. Article I, Section 3 requires “Concurrence of two-thirds of the Members present” [emphasis added] for conviction. Certain Republican senators may choose to be absent for the vote to convict.

Finally, whether or not the ex-president is convicted by the Senate, Article I, Section 3 indicates that he may still “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In fact, the post-presidential career of Donald Trump may be consumed with fending off indictments and avoiding prison, activities that may minimize the time he can devote to political mischief.

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