As we look ahead to a second Trump Senate trial, many are referencing the impeachment of Sen. William Blount, who was already expelled when he was impeached. That case has always been anomalous as the impeachment of a former legislative figure. It was rejected by the Senate. The more relevant case to the immediate issues is that of former Secretary of State William Belknap.
I have written about these impeachments in various academic works. Here is what I precisely wrote on the Blount and Belknap impeachment in The Executive Function Theory, The Hamilton Affair, And Other Constitutional Mythologies, 77 North Carolina Law Review 1791 (1999):
The impeachment of Senator William Blount of Tennessee may have been the most interesting both factually and legally. Factually, Blount stood accused of a conspiracy with Great Britain to take over territory in Florida and Louisiana (where Blount owned considerable property). The conspiracy was revealed in a hand-written letter in Blount’s hand. Despite the fact that the Senate had expelled Blount from its membership, the senators believed that a former officer could be impeached; however, the Senate did not believe that a senator, or any legislative officer, was a “civil officer” for the purposes of impeachment. Accordingly, the Senate dismissed the case on jurisdictional grounds. Notably, while clearly dismissing on the exclusion of legislative officers from impeachment procedures, the Senate did not question seriously that the underlying conduct would have been worthy of impeachment despite the fact that the conduct was not viewed as violating any senatorial duty or criminal law. Professors Hoffer and Hull note in their review of this case that “Blount was not accused of any recognized crime or any violation of the law. His misdemeanor was to mis-demean himself; to misuse his office for his own speculative ends.” Blount was never charged criminally for any act connected to the conspiracy and he was never accused of any misuse of his office.
7. William W. Belknap (1876)
The impeachment of former Secretary of War William Belknap represents a critical case in the congressional view of the scope and meaning of impeachment. Since Belknap was no longer in office at the time of his trial, the Belknap case indicates that resignation from office does not prevent trial on articles of impeachment. In this case, there was no need to impeach to protect the public from any additional harm or to assure the proper functioning of government. There was no “threat” to the system in keeping an official in office, as advocates of the executive function theory often emphasize. Instead, the House impeached and the Senate tried Belknap as a political response to a political injury, a corrective measure that helped the system regain legitimacy.
Belknap was charged with accepting bribes for contracts associated with the Indian territory. The House managers charged that Belknap had “disregarded his duty as Secretary of War, and basely prostituted his high office to his lust for private gain.'” Belknap first raised the jurisdictional argument that impeachment did not extend to former or retired “civil officers.” The Senate voted on this threshold jurisdictional question and reaffirmed that it had jurisdiction over former officers by a vote of thirty-seven to twenty-nine. Professor Pollitt correctly noted, however, that many senators continued to question jurisdiction and apparently voted for acquittal on this basis. There was little question of guilt, especially in light of the fact that Belknap refused to answer the articles of impeachment. Ultimately, only three senators believed Belknap was innocent, but twenty-two senators had doubts on the jurisdictional issue. The final vote on the closest article was thirty-seven to twenty-five in favor of impeachment. This vote, however, was only four votes short of the number needed for conviction. Since only three senators cast their votes based on lingering doubts of guilt on the merits, Belknap’s acquittal can be attributed to one senator who questioned jurisdiction.
The Blount impeachment was flawed on a number of levels. Expulsion was clearly with the authority of the Senate. It was rejected on jurisdictional grounds. Few people view impeachment as the appropriate remedy in such cases today. His impeachment also was surprising in its language. Blount was accused of effectively betraying the country by conspiring with Great Britain. The motivation appeared to be land speculation and profit. Yet, the articles of impeachment was comparably vague. Notably, Blount went on to serve in state office of the remainder of his life. Blount is most relevant as precedent in his threshold refusal to accept the validity of the trial and the dismissal of the trial as constitutionally flawed.
Belknap is closer to the current dispute as an executive officer. Belknap notably was impeached after leaving office as opposed to Trump who was impeached shortly before leaving office. However, there remains the threshold question of the trial of a president for removal who is in fact an ex-president who has already left office. That is the subject of my column today in USA Today. Almost half of the Senate voted on a threshold challenge to reject the very basis of the trial. He was ultimately acquitted.
I have been discussing this issue for 30 years, including the differences in impeachments in Great Britain, the colonies, and the United States. This includes the use of retroactive or post-service impeachments in Great Britain. We may now have to answer this question directly and concretely with the Trump impeachment.