If American politics shows anything, it is that enmity, not necessity is the mother of invention.
Many continue to feel rage over the Capitol riot on Jan. 6. I condemned the speech of President Donald Trump when it was still being given and opposed the challenge to the electoral votes. However, it is the future of the Constitution, not Donald Trump, that most concerns me as the Senate is about to try to remove a president who has already left office.
On its face, the planned impeachment trial is at odds with the language of the Constitution, which expressly states that removal of a president is the primary purpose of such a trial. At the time, Trump will be neither a president nor in office. He will be a citizen and would be best served legally to forgo the trial entirely as extraconstitutional and invalid.
The Trump trial could prove the tale of two cases with strikingly different precedents. The Democrats are likely to rely on the case of William Belknap rather than William Blount. For Trump, it is Blount who should be the focus of the Senate.
Blount was a senator from Tennessee who was alarmed by a plan for Spain to cede what is now Louisiana to France. Blount was a land speculator and he sought to have Great Britain take the land instead. That led to a call for impeachment but Blount was expelled in 1797 from the Senate before he could be tried there.
Blount went back to Tennessee and refused to appear before the Senate on the grounds that he was not subject to an impeachment trial after leaving office. He also contested the application of the impeachment provision to a legislative officer. The Senate apparently agreed and dismissed the case.
No other member of Congress has ever been subjected to such an impeachment trial.
The Belknap case is free of one of the threshold issues in the Blount case. He was not a member of Congress. However, one issue remained: he was no longer in office. Yet, as a former executive officer who had a full trial, it is the more relevant case.
In 1876, Belknap resigned as secretary of war after allegations were raised that he had accepted bribes and engaged in other corruption in the Indian territories. Again, there was a vote on whether the Senate could even try someone no longer in office. Twenty-nine of 66 voting senators disagreed with even holding a trial and voted against the proposition that Belknap was “amenable to trial by impeachment … notwithstanding his resignation.”
Not surprisingly given that vote, Belknap was acquitted.
This is one time when Trump’s natural inclination to be blunt would be better served to be Blount. By declining to appear, the Senate would be faced with the glaring problem of holding a trial of a citizen to decide, under Article I, Section 4, whether he “shall be removed from office” – after he already left office.
That is not an individual but an institutional issue to be raised before any trial. Each senator must decide whether such a trial is constitutional before deciding whether an accused can be retroactively removed for a high crime and misdemeanor.
This is an issue reasonable people can disagree upon. Many of us have struggled with this question for years without resolution. I have been discussing this issue for over 20 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. There is obviously a dialogic value to such trials that must be balanced against the constitutional language and potential costs.
There are good-faith arguments for the constitutional authority to render judgment on such acts and to impose the future disqualification from federal office. However, under this theory, any prior president could be barred from running again by the shifting balance of Congress. Impeachments can thus be used to even long-standing scores or curry favor with some voters.
If the Senate proceeds to hold a trial despite this threshold constitutional question, Trump can sit in Mar-a-Lago and promise to challenge any effort to disqualify him from future office. Indeed, the political miscalculation may be greater than the constitutional miscalculation.
A trial with an empty defense table would magnify the view of many that this is an improper or, at a minimum, unnecessary exercise. Moreover, if a court were to later declare the trial unconstitutional, it would be seen as a vindication of Trump, who has long maintained that the Washington establishment has been using any means to keep him from office.
If an effort to bar his candidacy in 2024 were to fail in the courts, it could resuscitate his standing, which is currently at an all-time low. Indeed, Blount again should be a cautionary tale. Blount remained popular back in Tennessee and spent the rest of his life holding an elected state office. (He died two years later during a lethal epidemic – yet another similarity to our present times.)
As I have previously suggested, the Senate could show institutional restraint despite the legitimate anger over Trump’s Jan. 6 speech before the Capitol riot. Trump’s legacy already includes the inglorious distinction of two impeachments. The Senate would not compound, but undermine, that ignoble legacy with an arguably extraconstitutional act.
The desire to add this added condemnation to Trump would come at too high a price for the Constitution and, ultimately, the country.
NOTE: This column also appeared on Fox.com
Won’t keep the Seig Heilers of NYC and NY off his back. Best Defense is Resign take a Federal Pardon and stick a thumb in his nose laughing all the way to the bank. He did his job especially the parts we asked for. The DNC has exposed itself as common garden variety socialist of one strip or another readily identifable as exactly the same as the Communist Party of the USSR. Clinton was smashed crushed ridiculed and is still under on going investigation for criminal acts. The GOP got much the same treatment but DID make changes dumping two dozen RINOs and the Socialists can run but they can’t hide anymore. President Trump delivered and managed to collect four years of military experience far more than draft dodger Biden and experienced at nothing Comrade Harris
Read the Constitution. “To the best of my ability” How are the Comrades going to get around that. He did, He delivered and they are paying the price because now THEY are the only one’s holding the bag. Starting with where the hell is the rest of the $2,000 piglosi?
You want to hold a trial, to remove from office a man who is no longer in office.
What universe do you live in?
The universe where they get their talking points from some sorosphere outfit every morning.
dimension…
Professors with relevant expertise are pointing out that Turley’s current views on impeachment are at odds with his own previous writing and work by others:
Brian Kalt (MSU College of Law prof.): “Turley’s 1999 Duke LJ article, Senate Trials and Factional Disputes: Impeachment As A Madisonian Device, had as its central thesis that we needed to look at other functions of impeachment besides removal. In it, he wrote specifically and approvingly about impeaching ex-officials.”
https://twitter.com/ProfBrianKalt/status/1351025702854864898 (has an image of a relevant excerpt from Turley’s 1999 article)
The full article: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://scholar.google.com/&httpsredir=1&article=1059&context=dlj
The quote is on p. 56:
“If impeachment was simply a matter of removal, the argument for jurisdiction in the Belknap case would be easily resolvedagainst hearing the matter. The Senate majority, however, was correct in its view that impeachments historically had extended to for-mer officials, such as Warren Hastings. Impeachment, as demonstrated by Edmund Burke, serves a public value in addressing conduct at odds with core values in a society. At a time of lost confidence in the integrity of the government, the conduct of a former official can demand a political response. Thisresponse in the form of an impeachment may be more important than a legal response in the form of a prosecution. Regardless of the outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government. Absent such a trial, Belknap’s rush to resign would have succeeded inbarring any corrective political action to counter the damage to thesystem caused by his conduct. Even if the only penalty is disqualifica-tion from future office, the open presentation of the evidence andwitnesses represents the very element that was missing in colonialimpeachments. Such a trial has a political value that runs vertically asa response to the public and horizontally as a deterrent to the executive branch.”
Keith Whittington (Princeton Politics prof.):
“Alternatively, ‘What is the Impeachment Power For?’ (Hint: Not just removal) lawliberty.org/what-is-the-impeachment-power-for/
“‘In many cases, removal is the entire point of an impeachment.’ But in other cases, it is not! hoover.org/research/high-crimes-after-clinton
“Just focusing on text and purpose of the impeachment power. An accounting of the history would only strengthen the case for the validity of impeachment trials of former officers ‘Can a Former President Be Impeached and Convicted?’ lawfareblog.com/can-former-president-be-impeached-and-convicted “
“Many continue to feel rage over the Capitol riot on Jan. 6. I condemned the speech of President Donald Trump when it was still being given”…. “As I have previously suggested, the Senate could show institutional restraint despite the legitimate anger over Trump’s Jan. 6 speech before the Capitol riot… As I have previously suggested, the Senate could show institutional restraint despite the legitimate anger over Trump’s Jan. 6 speech before the Capitol riot.~~~~~~Typical leftist spew…negate your own words with your own double speak words. Make your mind Liberaltard … ‘before’ or ‘after’….. I wasted 6 minutes of my life reading leftarded vomitus.
Two linked observations.
First, Prof. Turley is writing a blog, and a blog is not a polished piece of writing; it contains the impressions and hastily formed thoughts of the moment. A blog is not news, it is opinion, which is often confused with news because journalists have erased the line that once separated reporting the news from commenting on it. Consequently, errors of grammar, of spelling, and of thinking are to be expected, even from someone as serious as Prof. Turley.
Second, political rhetoric is political rhetoric, which is often heated, partisan, hyperbolic, and less than precise. To label it ‘reckless’ is also hyperbolic, but typical of blogs and op.ed. pieces, which often wrench a word or a phrase out of context and attribute a meaning to it not intended by its author. But if a norm for blogs and other print, broadcast, and web journalism, opinion, even when well-argued, is not political analysis. It is what Brendan O’Neill does.
https://www.spiked-online.com/2021/01/13/the-impeachment-of-freedom-of-speech/
All this impeachment nonsense is just a distraction. The left should be gloating right now and doing victory laps down Constitution Avenue. Why all the smoke and mirrors? I was just reading an article in an Italian daily connecting the dots between Italy, Switzerland, the timed release of Covid and our election. According to the article, the White House received evidence attesting to the Italian and Swiss involvement Dec. 8. So what was the big evidence the President was going to present Jan 6 before it got derailed by the Antifa setup? Was it more evidence of voter fraud that nobody wants to hear about anyway? Or did he have solid facts attesting to the fact that the left coordinated with foreign powers to release Covid and kill a whole bunch of people to destroy Trump and make way for their new world order? The left knew that nobody wanted to hear about election fraud, they knew the GOP headed by Pence was never going to vote the way Trump wanted them to, so why did they need to organize the nonsurgence? Why did they need to silence the President? Everything that is happening is just an Augean Stables technique to distract the attention of the public. The fact that it works on John Q. Public is no surprise. The fact that it works on the self-appointed intellectual elite is a little more concerning. Biden, or his handlers, will invoke the Insurrection Act five minutes after he is inaugurated. They will use the “continued threat of selfies – er, violence” to keep Biden under wraps (and confiscate firearms) so the people who voted for him don’t understand he is completely unfit for office. Speaking of unfit for office, if Trump really did have this kind of evidence and he sat on it for a month just to put it on his highlight reel, he is a bigger moron than his detractors have been saying for four years. One thing’s for sure: whatever evidence was going to be presented on January 6 will never see the light of day. They will keep impeaching and indicting until Trump understands that they will let him and his family live if he keeps his mouth shut and stays away from public office. But yeah let’s flog this dead horse a little longer, it beats talking about what’s really going on. Like Bill Gates buying up all the farmland. I’m sure that doesn’t mean that he will or already does control the food supply. Tra la la.
This very minute Trump could choose to hold a press conference and it would be covered. He doesn’t have any big evidence. He’s a con artist.
Your right Upchuck Schemer and Nanny Pigloser are con artists and have yet to produce ANY evidence… EVER.
Yep. We’ve got a bit of Wag the Dog going on in Washington DC which is now a full-on militarized zone. Stanley Motss is impressed.
‘The notion of a hermetically sealed candidate, having a hermetically sealed inauguration, in front of a nation of people hermetically sealed in their homes, is deeply, deeply disturbing’
@bhweingarten
Think Soviet or maybe Louis XVI.
Come to think of it, even Stalin and Hitler weren’t as afraid of the people as these pathetic creatures are.
This is the iconic image of the Biden administration.
Good grief!
The Biden Administration hasn’t started yet.
The Biden Administration has chosen what appears to be a concentration camp to hold its opening ceremonies.
What augury is that?
It doesn’t look like a concentration camp to me. No one is locked inside the National Mall. It doesn’t look any different from what’s been around the WH for months. Do you consider the WH a concentration camp too?
Biden doesn’t control the National Guard. Presumably the Trump Administration is advising them on inauguration safety and also coordinating it.
Is Mr. Weingarten always so fond of hyperbole?
The free press, you know, the government ‘watchdog’ press, really really really needs to start reporting the f’ing truth….like right now. All of you reporters following Joe Biden know exactly what you are seeing in front of your very own eyes. Just stop DECEIVING the American people and stop LYING! Do you dam jobs. Joe Biden is a SENILE old man totally incapable of DOING THE JOB and you all know it. REPORT THE FACTS and the TRUTH for once. Just stop the Fake News PROPAGANDA cover up on behalf of your Democrat Party. My God. We have NO FREE and FAIR PRESS. We are doomed as a country. DOOMED>
Joe Biden IS SENILE. Watchdog Press? Hello? Hello? Anyone there? Put out the video EVIDENCE. Report the FACTS and the TRUTH to the American People!
WHO is cranking out all these policy positions on behalf of Joe Biden? Who is “handling” and “managing” SENILE old Joe Biden? Because NONE of this is being coordinated by Joe Biden himself. HE IS SENILE! Report the FACTS for once. God help this country.
He isn’t senile.
Sorry, but yes he is. And if he isn’t “senile” then he is well on his way. If you see any press footage of him, watch him. Watch him walk, watch him look confused, watch him speak when he goes off teleprompter script. The man is mentally deteriorating and senile. There is no way this man is directing his adminstration’s roll out at this time, no way in hell.
I agree from having seen two relatives deteriorate from dementia. I hope that I’m wrong, but I’m truly concerned.
We are drowning in propaganda and lies being spread daily by the mainstream media.
Seems curious there isn’t a national hunt for the people behind Q based on them allegedly inciting a coup. Why’s that? I can only think of one reason.
Seems curious that you assume there isn’t one.
Why do you assume that?
Have you seen ANY reporting on such an investigation?
Of course I have. The FBI announced in 2019 that they consider QAnon and some other conspiracy theories a domestic terrorism threat, and they investigate the people behind it just like they investigate the people behind other domestic terrorism threats.
They ‘investigate the people behind it’….and?
And what?
You baselessly assumed “there isn’t a national hunt for the people behind Q.” It’s an international hunt. The person or people responsible need not live in the US.
The “authorities” have known about “Q” for four years. There was an alleged “insurrection” incited by “Q” and they are stil “looking” for who is behind Q Anon? Come on.
They’d “find” Q if they looked inside the CIA Psy Ops Division.
There was plenty of incitement in plain sight, including by Trump and allies like Giuliani and Wood.
As for what the FBI and CIA don’t know, do you ignorantly believe that there are no unsolved FBI and CIA cases?
Do you ignorantly still approve of the NSA’s spying on Americans when the allowed the Jan 6 riots?
Do you ignorantly believe the FBI does not know who Q Anon is?
WHY do we need 25,000 troops in D.C. for a virtual inauguration?
Serious question.
Obvious….there are a sufficient number of people willing to defy the Mayor and Secret Service. Strong deterrence is called for. This is a period when the Rule of Law is being challenged. It must be upheld — it’s all we have in order to solve conflicts peacefully. Those flirting with violence as a means of changing the course of national government are, by definition, wannabe terrorists. The time is here to crush all such inclinations.
“The time is here to crush all such inclinations [to violence].”
***
Of course you mean BLM and Antifa who have been destroying cities and attacking people for the last four years and showed up to promote turmoil in DC.
Only parts of the inauguration are virtual. Biden will be inaugurated on the West Front of the Capitol by Chief Justice Roberts, just like Trump was. About 1,000 VIPs will be in attendance, including governors, members of Congress, SC Justices, …
Even if Biden were to be inaugurated inside, there are threats of violence in capitals around the country, including DC. My governor has planned for deployment as needed in my state. How about yours?
It’s almost like kicking someone else’s dog! But it is remarkable how much the Left fear this man! They’ll probably try silver bullets . . . or a Willow stake thru the heart?
Here we go again. The Constitution simply does not speak to every situation. The Founders did not think about
President committing “high crimes and misdemeanors” in the interim between being voted out of Office and the Inauguration of the succeeding President.
I find it all too predictable, and hubristic for lawyers now to jump in and pretend they know “what the Constitution obliges” in this
“edge case” (a software developer term that seems apropos to the legal field; many software bugs arise from the programmer’s failure to specify the proper response to an edge case).
I think Kevin McCarthy was perhaps seeing things ahead when he proposed a bipartisan Censure. The Congress could have added a 14th Amendment lifetime bar penalty into that Censure, passed it, and left it to the Courts whether it was enforceable.
The best Congress could do beyond Censure would be to clarify in legislation the edge case response for the next time. The most obvious omission in the Constitution are timeliness requirements for passing Articles, commencing the Senate trial, and concluding Senate verdicts. These deadlines should address all of the scenario sequences begun by the commission of the impeachable offense…including the death of the President, resignation of the President, invocation of removal by the 25th Amendment, and the end of the Presidential term of Office.
I think you make reasonable points. I think JT would probably agree with you, based on what he wrote today.
I especially agree that censure would have been more appropriate because it would be on firm constitutional ground. This is not to suggest that I would vote for censure, but I could understand and accept how some might.
All this reminds me just how fallible even supposed lawmakers are about the law. The human race is its own worst enemy–with the single exception of trolls.
I got troll-swarmed on the last blog posting about these same issues. Soros must be paying overtime. Cheese and crackers, man.
If a former POTUS doesn’t have presidential protections, he shouldn’t be tried in the Senate. He should be tried in criminal court. If he gets reelected, at that point he can be tried in the Senate and disqualified at that time.
If a former POTUS is brought before the Senate without presidential protections, that is a SHOW TRIAL. A show trial can prejudice criminal proceedings against the former POTUS. I suspect the Democrats would just love that.
A Soviet style show trial is the logical companion piece to a Coup Inauguration.
Yes.
The only way there will be a coup inauguration is if Trump carries it out.
“U.S. defense officials say they are worried about an insider attack or other threat from service members involved in securing President-elect Joe Biden’s inauguration, prompting the FBI to vet all of the 25,000 National Guard troops coming into Washington for the event. The massive undertaking reflects the extraordinary security concerns that have gripped Washington following the deadly Jan. 6 insurrection at the U.S. Capitol by pro-Trump rioters. And it underscores fears that some of the very people assigned to protect the city over the next several days could present a threat to the incoming president and other VIPs in attendance. …”
https://apnews.com/article/biden-inauguration-joe-biden-capitol-siege-ap-top-news-857bacc273e16ff82dc9fefed1242ae8
Are you paid to post here?
Why do you assume others are paid to post here?
Interesting ‘inauguration’.
The Capitol flooded with troops and checkpoints like Checkpoint Charlie.
Cameras and spotlights.
Razor wire.
Shoot to kill orders.
Censorship.
Let’s us know who really is in town.
Looks like a coup.
Perhaps it is.
Trump is still President. All that you list is occurring under Trump.
A coup is normally done against someone still in power; in this case the President and, particularly, the citizens of the United States.
You’re the one who said “Looks like a coup.” You think Trump is carrying out a coup against himself before he leaves on Wednesday?
Ask yourself how many coups have been carried out against people not in power.
Then you might be able to figure it out.
LMAO that you deny that Trump has control over the things you find coup-like.
Considering the transition is scheduled following the constitutional result of a fair and free election, this wouldn’t be a coup. Now what Trump’s militia attempted to do 2 weeks ago would be much closer to the definition: “a sudden, violent, and illegal seizure of power from a government.”
He wasn’t at the last senate trial so I don’t think he was planning on coming to this with or without your article. Besides he’ll be too busy with the court matters that could see him actually do time like in New York where he will probably he indicted later this week.
Trump appeared through counsel representing him. That is what Turley means. He is saying that Trump should not even mount a defense through counsel. He should just ignore the proceeding.
Fair point, he even mentioned the empty table.
This impeachment is not about one speech on Jan 6. It is about:
Repeatedly, publicly, and loudly lying about voter fraud for over two months.
Telling his supporters that the election was stolen from him/them
Pressuring the various legislatures to overturn the will of their voters and give him the election.
Pressuring the GA SoS to fraudulently fund votes and declare him the winner.
Pressuring Pence to unconstitutionally throw out EC votes.
Telling his supporters to gather in DC on Jan 6 and be wild.
Along with others, inciting a riot on Jan 6.
After his supporters entered the Capital, not doing anything to stop it.
All of this adds up to clearly impeachable conduct.
He’s sworn every election he’s lost was stolen from him since Cruz beat him in Iowa 5 years ago. I wonder if insanity is an applicable defense at a senate trial?
No more insane than the Democrats swearing for four years that Hillary lost because of Russia. The Dems spent four years denying that Trump won, and divided the country over that. Short memories.
Considering Hillary actually conceded within 24 hours I don’t see how the two are comparable. Democrats took issue with Trump inviting foreign interference however particularly when he seemed determined to continue to do so. Claiming the election was stolen has been Trump’s go to since his first election defeat (he even claimed to have won the popular vote repeatedly in 2016 if not for the “illegal votes”). While that pattern of conduct would likely be inadmissible at a criminal trial because of its probative nature, it might be admissible to show proof of motive, intent, absence of mistake or accident etc.
No one denied that Trump won.
All of our intelligence agencies agreed that Russia interfered in the election with a goal of helping Trump win. Who knows whether he would have won without their help.
how is Never Never Land?
Be careful what you wish for.
Your faux rage is noted. However….address the legal and constitutional issues and spare us the rest. How does the Senate remove someone from Office retroactively? Your guy is “the” President upon taking the Oath….and hoping he Harris doesn’t trip him as he is going down the steps from the Swearing In….and Trump is just a plain ol’ Citizen who is the most recent Ex-President, Most Recent Former President, the guy was last President before yours. What does that pesky ol’ Constitution say about the Senates’s jurisdiction over Presidents re Impeachment? Read it out loud to yourself….slowly.
That was directed to Molly G.
No incitement, no insurrection, no insurgency, no riot – in comparison with any other similar event, or the dictionary definition thereof. I particularly like the video of the three guys and the cop in the empty Senate chamber, with the cop telling the three guys he’d like them to leave, because, it’s like, “the sacredest place.” Or, the ones of the security people allowing protestors? Demonstrators? to enter the Capitol building. And, it was all over before dark. Yeah, really successful RI3. No actual facts in your post.
You like that video where they’re breaking the law in the Senate Chamber, huh?
Do you like that one of them said “I think Cruz would want us to do this” and the other responded “Yeah, absolutely,” while they were rifling through a notebook sitting on the Senate lectern? If I were Cruz, I would put out a statement saying “No, actually, I object to what you did.” I wonder why he’s silent.
The FBI has over 275 open cases related to the insurrection attempt. Over 50 people have been arrested already. You can browse their crimes here –
https://extremism.gwu.edu/Capitol-Hill-Cases
ELECTION WAS STOLEN, STOP TRYING TO CHANGE HISTORY.
It wasn’t stolen. You’ve been conned.
Roy Blount is not a bad senator. To be Blount about things he speaks out and forever holds his piece. He keeps the piece (pistol) well hidden.