The Second Trump Senate Trial: Think Belknap Not Blount

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):

 

1. William Blount (1798-99)

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. Link to the text of the note

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.

 

134 thoughts on “The Second Trump Senate Trial: Think Belknap Not Blount”

  1. Jonathan: In your opinion piece in USA Today (1/14/21) you acknowledge that the House has a “duty” to impeach even if that “occurred on the last day of a term,…” But then you argue illogically that this impeachment of Trump “proceeded without any deliberation of the traditional impeachment process…It was a snap impeachment”. You say at least one day of hearings and witness testimony should have been required. I disagree. First, unlike the first impeachment, the evidence against Trump this time was overwhelming and hiding in plain sight. His incendiary incitement to violence hour long speech was recorded on video. You didn’t need a long parade of witnesses to confirm what everyone saw in real time. Second, The House spent 2 days debating the article of impeachment with members having ample opportunity to argue for and against. What I think you are upset about is that you didn’t get the opportunity to once again testify for the Republicans and further burnish your academic credentials. Don’t be too disappointed. One House Republican used his allotted time to quote you extensively as one “scholar” who opposed what he called a “rush to judgment”. So, in the end, your voice was heard but made no difference in the outcome. And the vote in the House to impeach was not “partisan” as you claim. Ten Republicans crossed over to vote for impeachment making it a bipartisan vote.

    In an opinion column in the Washington Post (1/8/21) Lawrence Tribe writes that impeachment traditionally calls for “due diligence, deliberation and process”. But he argues that “the Constitution does not require slow motion at times of crisis, especially when the nation witnessed an impeachable offense in real time. Here, holding protracted hearings would be a foolish undertaking, akin to playing a sonata on the decks of the Titanic”. Trump came close to destroying the Capitol in pursuit of his goal of overturning a legitimate election to stay in power. It was an attempted coup that required an immediate response. Trump’s call to arms was akin to Hitler’s Reichstag fire. When the Capitol is “on fire” you don’t call for a slow walk of the fire brigades!

    There is one thing we learned from Trump’s first impeachment. When the Senate refused to convict him Trump was emboldened to believe he was above the law and continued to attack our democratic institutions. After he lost the election Trump refused to concede and even tried to get state election officials, like in Georgia, to “find” the votes to make him the winner. That’s a violation of both federal and state election laws. Even today Trump claims the second impeachment was just another “witch hunt” and still refuses to acknowledge Joe Biden as the next president. Trump is a continuing threat to our democratic institutions and must be prevented from ever running for public office again!

  2. Jonathan, you’re over the map on this.

    But what really matters is your inability to cite a single word uttered by Trump on January 6th that can be construed as an attempt to incite violence.

    At the same time, you have never addressed the multiple statements made by House and Senate members last Spring and Summer supporting and encouraging the Antifa/BLM riots throughout the country.

    Why we those statements not impeachable?

    You’re constitutional ivory tower is crumbling, and you are definitely afraid of something.

      1. “Fight like hell”, with zero context, was the best the AP could come up with in that completely bogus “fact check” drivel.

        As the article notes, he clearly stated that they should “peacefully and patriotically make your voices heard”.

        Any half-assed defense attorney could easily handle this for him. It’s a nothing burger.

        Plus there are lots of videos of Trump supporters physically stopping people from breaking windows. Likewise, there are lots of videos showing young guys using the exact same homemade devices Antifa uses to break through reinforced glass barriers (aka/windows).

        A 2 foot long steel bar with a u shaped piece of steel welded to it for providing leverage.

        Those are all things that people with critical thinking skills notice. The AP is just another arm of The Ministry of Truth. Goebbels would be green with envy.

        1. One cannot look solely at Trump’s words on January 6 to evaluate his culpability. What had the insurrectionists so riled up? Weeks of lies about nonexistent election fraud–beginning even before the election–because Trump was losing in virtually every single poll. After Trump made a fool of himself by declaring victory in the early morning hours after Election Day, he tried every possible ruse to defeat the will of the American people. Dozens of lawsuits, demands for re-counts and re-recounts, calls to Secretaries of State and Governors, demanding that they award their electors to Trump, and when that didn’t work, vague threats of criminal prosecution. Firing Chris Krebs because he told the truth that the election was not fraudulent. Firing Bill Barr because he said there is no evidence of fraud. Pounding on Pence to someone ignore the votes of the Electoral College and award them to him, demands that Republicans “object” to the Electoral College tally. ALL WITHOUT ANY EVIDENCE OF ELECTION FRAUD, AND DESPITE ALL PROOF TO THE CONTRARY. Despite failure after another, Trump held “stop the steal” rallies, demanding that his disciples take action. On January 6th, Giuliani exhorted the Trump Insurrectionists to engage in “combat”, his dumbass son, Don, Jr., told the deplorables to fight, and Trump kept egging them on, claiming he would march with them, which was, of course, a lie. So, the Trump disciples became insurrectionists, invading the Capitol, killing 5 people, spreading urine and feces, stealing laptops, the Speaker’s podium, erecting a gallows, calls to “hang Pence” and defacing monuments, including one to the late Rep. John Lewis.

          NONE OF THIS WOULD HAVE HAPPENED IF TRUMP WOULD HAVE ACCEPTED THE WILL OF THE AMERICAN PEOPLE AND DIDN’T LIE ABOUT LOSING THE ELECTION FAIRLY. Trump’s lying is the cause. He still has not conceded the election, and never will for no reason other than his massive ego. He still insists he won, despite no proof whatsoever. When he told the disciples to “fight like hell”, they took him at his word. In fact, Trump’s words are being cited in the defense of some who have already been arrested and charged.

          1. What have you investigated to conclude there was no election fraud? There is a mountain range of evidence but communists ignore it outright because it doesn’t accord with their message. I have examined it and am involved in ongoing litigation. There is SIGNIFICANT ELECTION FRAUD. We never get the merits because of the modern “standing” doctrine that would be unrecognizable to the Founders.

            SINCE YOU LIKE CAPS, you tell half truths above. SAD, VERY SAD, that you do not care about the truth.

            NONE OF THIS WOULD HAVE HAPPENED IF THE FILTHY COMMUNISTS HAD NOT INFILTRATED TO WEAKEN AMERICA. Sorry pal, if we enforced the Constitution, your people simply wouldn’t be in power.

            PS – ANTIFA AND BLM INSTIGATORS WERE AT THE CAPITOL. IT’S WELL DOCUMENTED.

            PS 2 – JOE BIDEN and his dumbass entourage STOLE A FEDERAL ELECTION . . . . I take that back. Grandpa who talks to the furniture is not that bright…..it was the DNC who did it.

  3. Your article in USAT: “…John Roberts who has to decide if he is being property summoned…” Should that be “properly”?

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