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.
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