The Senate’s Cadaver Synod: The Trial Of Citizen Trump Would Raise Serious Constitutional Questions

Below is my column in USA Today on the upcoming Senate trial of President Donald Trump. The Hill recently my second column on why the best defense of Trump could be no defense — to skip the Senate trial and force a threshold vote on the constitutionality of the trial of an ex-president.

Here is my column:

With the second impeachment of President Donald Trump, the Congress is set for one of the most bizarre moments in constitutional history: the removal of someone who has already left office. The retroactive removal would be a testament to the timeliness of rage. While it is not without precedent, it is without logic.

The planned impeachment trial of Donald Trump after he leaves office would be our own version of the Cadaver Synod.  In 897, Pope Stephen VI and his supporters continued to seethe over the action of Pope Formosus, who not only died in 896 but was followed by another pope, Boniface VI.  After the brief rule of Boniface VI, Pope Stephen set about to even some scores. He pulled Formosus out of his tomb, propped him up in court, and convicted him of variety of violations of canon law. Formosus was then taken out, three fingers cut off, and eventually thrown in the Tiber River.

While some may be looking longingly at the Potomac for their own Cadaver Synod, Speaker Nancy Pelosi and other Democrats have stated that their primary interest is in the possible disqualification of Trump from holding future federal office. Disqualification however is an optional penalty that follows a conviction and removal. It may be added to the primary purpose of removal referenced in the Constitution. The Trump trial would convert this supplemental punishment into the primary purpose of the trial.

This did happen before but that precedent is only slightly better than the Cadaver Synod. That case involved William Belknap who served as Secretary of War to President Ulysses S. Grant. Belknap resigned after allegations of corruption — just shortly before a House vote of impeachment. The Senate held a trial but acquitted him. Twenty nine of 66 voting senators disagreed in a threshold motion that Belknap was  “amenable to trial by impeachment . . . notwithstanding his resignation.”

In fairness to the Democrats, I have long rejected the argument that there comes a point when it is too late to impeach a president while he is in office. As I said in both the Clinton and Trump impeachment hearings, the House is under a duty to impeach if it believes that a president has committed a high crime and misdemeanor. If that occurred on the last day of a term, it would still be warranted.

My objection to this second impeachment was that it proceeded without any deliberation of the traditional impeachment process. It was a snap impeachment, which is to the Constitution what Snapchat is to conversations. It reduces the process to a raw, brief and partisan vote. This could have been avoided. A hearing could have been held in a day to allow the language of the article to be amended and the implications of the impeachment considered. It would also have allowed for a formal demand for a response from the president.

Instead, the impeachment was pushed through on a partisan muscle vote with only ten Republicans supporting the single article. It was an ironic moment. In the last Trump impeachment, I chastised the Democrats for pushing through an impeachment on the slimmest record and the shortest time frame of any presidential impeachment. They insisted that there was no time for witnesses before the House Judiciary hearing, but later waited weeks to submit the articles to the Senate. Now they have outdone that record with an impeachment with no traditional record in a matter of a couple of days. The Senate will not sit until January 19th and any trial would likely occur after January 20th.

I have long wrestled with the notion of a retroactive impeachment trial. In 1999, I wrote a lengthy piece on impeachment in the Duke Law Journal and noted “The Senate majority, however, was correct in its view that impeachments historically extended to former officials, such as Warren Hastings.” It did indeed was used retroactively in Great Britain. Thus, it can be argued that there is a historical basis for this interpretation. Yet, there are a number of differences in the use of impeachment in both countries.  This is one of the most contested practices. I can see the value of establishing that a president was not just accused but convicted of unconstitutional acts. There is also the value of disqualification of such an individual from future office. However, what was an intriguing academic puzzle is now a pressing constitutional concern.

The impeachment trial of a private citizen raises a host of constitutional and practical problems. For example, a president can rely on publicly-funded lawyers like the White House Counsel and can assert presidential privileges. After leaving office, an ex-president would not only pay for his own defense, but he will lose the ability to make privilege determinations. Indeed, many such assertions would be subject to the review of his successor, Joe Biden. It would be like Pope Stephen making determinations on critical evidence of Pope Formosus after pulling him out of the crypt.

The main issue however would be whether this is really an impeachment trial, as opposed to some curious constitutional post-mortem on a passed presidency. That question could face Supreme Court Chief Justice John Roberts if he has summoned for this role. A chief justice does not simply show up at anything deemed an impeachment trial. He must make an independent judgment over his carrying out a constitutional function.  Even if he rules that this is a valid trial, that ruling could be rejected by the Senate in a motion to dismiss the article. In the Clinton impeachment, Democrats demanded such a threshold vote before a trial. Of course, since there is no president to try for impeachment, the Senate may not even ask Roberts to preside — a telling departure that only undermines the trial as a whole.

This impeachment should end with the Trump administration. I do not fault those who view the president’s conduct as impeachable. The speech was reckless and wrong. My primary objection was to the use of a snap impeachment and the language of the article of impeachment. That is now part of Trump’s presidential legacy. The question is now what will be the troubling constitutional legacy left by the Senate in the trial of an ex-president.

In my view, a retroactive removal vote would combine with the use of a snap impeachment to fundamentally altering the role of impeachment in the United States. It would take a rush to judgment and turn it into a parade of constitutional horribles. Any party could retroactively impeach or remove a former president for the purpose of disqualifying him from office. Thus, if a party feared a one-term president’s possible run, they could hold use impeachment to eliminate the political threat. With the snap impeachment, it would be worse than creating a type of “no confidence vote” under our Constitution. After a non confidence vote in the United Kingdom, a former prime minister can still run again for office.

A conviction would also not bring the closure as many may hope. Such disqualification would be one of the few impeachment issues that could be challenged in court. Trump would have standing to sue for his right to run again and he could well win. He would then be more popular than ever with many citizens eager to defy the Washington establishment. There is another path. The Senate could end the trial with a threshold vote and let history and the voters be the final judge of Donald J. Trump.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

154 thoughts on “The Senate’s Cadaver Synod: The Trial Of Citizen Trump Would Raise Serious Constitutional Questions”

  1. Of course this is a politically calculated impeachment that has nothing to do with a President being an active threat to constitutional governance.

    Once again, Democrats are trying to use political lawfare to cancel a populist movement that remains a legitimate threat to their power. This political beheading won’t do anything but reinforce the conservative movement’s resolve against the Leftists agenda.

    I suspect however the strategy is not to change the hearts and minds of the conservative base. Instead, this process will expose and fracture the Republican party. A divided party is a weak party and that will have the desired effect of weakening the vehicle the populist conservative movement needs to win elections.

  2. An article in The Guardian today days Trump tears up letters from others and other documents but his staff takes them out of trash, tapes them up and saves them for history. This started early on in his term. He has a fireplace in his office.

  3. Turley loves to throw out the term “snap judgment” kinda like when the Senate leaders announced that Trump would not be found guilty no matter what in the first impeachment. And it is not surprising that Turley would use the term “rush to judgment”, again, the republican Senate had no problem with it the first time either. Turley’s official position has always been, slap Trump on the wrist, and move on. Not this time, Not this time.

    1. FishWings, that’s a very good observation. Turley never mentioned the need for the senate to follow the process including having witnesses testify which republicans vehemently opposed because they already deemed him not guilty before he was impeached by the house.

  4. If President Trump doesn’t get the protections of a President once he’s out of office, he shouldn’t be tried in the Senate. That’s pretty obvious to me.

    If he is elected to the Whitehouse again, the Senate can try him at that point. Also pretty obvious.

    While he’s out of office, the Democrats can try him in criminal court for incitement. Obvious, again.

    However he might be tried, he won’t be convicted. This is as futile as it is divisive. The Democrats just want to haul him up to Congress and conduct another show trial. This is yet one more flavor of the Democrats’ “reverse McCarthyism.”

    On the good side, the trial might give us a Democrat after whom we can name this phenomena. “Warlockism?” “Gillibranding?” We’ll see who steps up. Perhaps we can have a naming contest on this comment board!!

    1. Diogenes, “ If President Trump doesn’t get the protections of a President once he’s out of office, he shouldn’t be tried in the Senate. That’s pretty obvious to me.”

      You don’t understand how this works. The president is not immune from being tried just because he’s no longer in office. It’s the same principle that if you commit an offense in one state and move to another and become a citizen of the new state you can still be charged and convicted by the state you are no longer a citizen of.

      Trump committed an offense when he was president. Leaving office doesn’t just make the offense go away. It still has to be addressed. Turley seems to ignore that just because trump is no longer president when the trial starts.

      Trump as a private citizen is not immune from the offenses he committed in office. He still has to face the consequences of his actions.

      1. He can be tried as a private citizen for incitement in criminal court. That’s the proper venue. The Senate trial carries no criminal sentences–again, the wrong venue.

        A Senate trial without presidential privileges and protections is simply intended to prejudice the public against him. That can harm Trump in criminal proceeding, which I suspect is just one more motivation in this case.

        1. Diogenes, the offense was done as President. The senate has jurisdiction. Just because he is sudden a private citizen doesn’t mean a criminal court can try him. They have no jurisdiction over a president’s offenses. Only the senate does. This is why your assumption is wrong.

    2. Members of Congress don’t have standing to try Trump for incitement in criminal court. That would have to fall either to the DOJ or the DC AG. Trump is still President, and impeachment by the House is totally constitutional.

      1. I’m not suggesting the impeachment was unconstitutional. I suppose it was “constitutional” but definitely ill-advised.

        I’m saying try Trump with DC AG, assuming he can get a fair trial there (which he probably wouldn’t). You probably won’t get a conviction anyway because he didn’t tell the crowd to be violent. He told them the opposite.

        1. Diogenes, DC AG cannot try Trump for the same reason the DOJ cannot press charges on a president. Only the senate can do that.

          Trump committed the offense as President, not as a private citizen.

          1. If President Kamala Harris burns down buildings and loots stores while in office, can she not be criminally tried and sentenced? I say yes, because an impeachment conviction carries no criminal sentence. It’s absurd to think Presidents or former Presidents can’t be criminally sentenced for felonies committed while in office.

            I’m not a lawyer, so if you can quote book and verse from the law, I will yield.

            1. Svelaz was probably speaking about trying a President while in office, while you are talking about trying a President once he has left office.

              The Office of Legal Counsel memo that a sitting President cannot be indicted is the reason that Mueller did not assess whether to indict Trump for obstruction. He stated this under oath. Here’s the memo:
              https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution

              Congress needs to make clear that a sitting President *can* be indicted, but criminal trial will wait until the person is out of office. There is nothing preventing former presidents from being indicted, tried and sentenced for crimes, which is why Trump is probably going to try to pardon himself.

  5. The witching hour is upon us…midnight is close at hand…and woe be to those for whom the bell tolls…

    More than 200K sealed indictments…no wonder Trump added thousands of new cells at Gitmo…

    The Atomic Sledgehammer Of Truth & Justice is falling…and it will be merciless…

    You can’t stop what is coming…nothing can stop what is coming…

    WWG1WGA

    1. Anonymous, that’s cute. Problem is Obama never committed impeachable offenses. Like the voter fraud claims republicans pushed throughout the election they have no evidence. Even Turley admits what Trump did was impeachable. His only concern was about his fast it was done. Turley is just flexing his “intellectual credibility” by opining that a trial after trump leaves office is a constitutional problem. Yet he admits it’s not unprecedented because it’s happened before.

      Just because trump becomes a private citizen at noon on Jan 20. Doesn’t mean he is automatically not accountable for what he did as President. What it means is trump no longer has the protections and privileges of the office. Trump should have thought of that before doing stupid impeachable actions just before leaving office. Not having the trial would send the message that presidents are above the law.

      1. I hear a lot of counter claims of election fraud “where there is no evidence”.
        Here is the evidence, and lots of it:

        http://www.HereIsTheEvidence.com

        Ignore it if you will. Claim it does not exist if you want.
        But it is there, for all to see, if they care to see.

        “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

        ― Upton Sinclair,

  6. Turley is not making sense in this article. How can impeachment on the last day of office mean anything since impeachment is merely an indictment and the Senate is only allowed to vote to remove the official from office? Most of the article is spot-on but that comment is a head-scratcher. Congress is bound by the Constitution as to what it can do. Now, if the faithless FBI could manufacture evidence that he personally committed a crime (or conspired to commit one in the recent convoluted logic that makes discussion a crime), he could be charged but that is not Congress’ responsibility. Congress makes laws, it does not enforce them. Only the Executive Branch has the power to “execute” laws made by Congress.

    1. The Senate isn’t limited to removing the impeached person. The Senate can also vote on “disqualification to hold and enjoy any office of honor, trust or profit under the United States” (Article I, Section 3).

      1. CHTD, I assumed just the fact that the president has been impeached that he is automatically disqualified from running again. From what I’m seeing is that there are two distinct procedures. Impeachment and removal. The constitution only mentions impeachment, but not removal. The senate is charged with conviction. I don’t think impeachment is both procedures.

        Constitutional originalists would be hard pressed to say that impeachment is both impeachment and removal if they are to follow the plain language of the constitution.

        1. Svelaz, there are three distinct votes: impeachment, removal, and disqualification from holding any further office. The first occurs in the House, the second and third occur in the Senate. The Constitution does mention removal in Article I, Section 3: “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.”

          I’m not suggesting that impeachment is removal. It isn’t. I’m pointing out Vladeck’s argument that the Senate can vote on disqualification of someone who is not in office.

          1. CHTD, 👍 I was not aware that disqualification was a separate option.

            Turley seems to have completely overlooked that while focusing on the removal aspect. It doesn’t seem he is aware of he is just focusing on the removal option to buttress his argument that a trial to remove Trump once he’s out of office would pose a constitutional problem.

      2. If we are to believe the above suggestion, we must also believe the Framers were incompetent and incapable of precisely and accurately writing and legislating fundamental law.

        “AND not OR”

        The case must include removal AND disqualification as the two are joint, combined and in conjunction, not several and separate.

        Judgement…shall not extend further than to removal from office “AND” disqualification to hold and enjoy any office of honor, trust of profit under the United States:…

        The article does not state, imply or intend “OR.”

        The article deliberately omits and, thereby, excludes “OR.”
        ______________________________________________

        Article 1, Section 3, Clause 7

        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.

  7. “Nancy Pelosi and other Democrats have stated that their primary interest is in the possible disqualification of Trump from holding future federal office.”

    Jonathan, you’re confusing their overt desire for disqualifying Trump from running again in 2024, with their covert desire to kill populism. What they fear is not Trump the person. Their true fear is the populist movement that got both him and Obama elected, and Brexit getting passed in the UK.

    Barry ran on a populist platform because his handlers knew through polling (and more importantly focus groups), that to do so greatly increased the chances of a relatively unknown empty suit winning the nomination and the election. Obama picked the Iraq War as his primary wedge issue. But Barry was a corporatist just like Bush, who did nothing more than take the corporatist baton from Bush and run with it. The classic Wolf in sheep’s clothing.

    Trump took Obama’s populist playbook, put a conservative Republican spin on it, chose illegal immigration as the wedge issue, and won the election. So the combination of Trump winning and the passage of Brexit represented the globalists worst nightmare come to life.

    Nancy is just following orders from her globalist money masters. Who have obviously become so desperate to maintain control that they openly rigged the election to put an old easily controlled crooked politician with Dementia and a closet full of skeletons into office in an attempt to kill populism and the worldwide populist movement.

    You need to start looking at the entire forest instead of focusing on the individual trees. Now that it has become glaringly obvious that McConnell and Pelosi are two peas in the same pod, it is the beginning of the end of the 2 Party system.

    The populist movement is not going to go away. In fact, it will now grow even stronger on a much more secure footing.

  8. It is so comforting to know that Congress has nothing else to do but another impeachment theater. Their time would be better spent asking why 74 million people are so ticked off that they voted for the guy….and it has nothing to do with the all the ‘isms’ they like to throw around.

    1. Don’t forget the Covid theater too. All the whining that some Republicans that didn’t wear masks caused Covid of the Democrats who got exposed by their fellow Democrat who came to vote even though had been positively tested for Covid. All theater.

      1. Actually the COVID virus has been evolving, mutating, as expected of all RNA viral pathogens, and it appears concerning.

        RNA mutates randomly, sporadically, in all living organisms, but they are mostly harmless. DNA replication and various genetic programs found in all living organisms either repair mutations or annihilate them at the cellular level. In viruses, their mutations are unchecked since viruses are not living organisms and hence lack genetic repair programs.

        While the original SARS-CoV-2 virus strain (don’t call it the Wuhan virus) causes very few deaths (<0.01%) in people with compromised health, the newer variants now being called by their place of discovery (UK strain, South African strain, Brazil strain, etc) are much more aggressive and responding precisely as expected to environmental evolutionary pressures like vaccines. In other words, the virus is showing extraordinary fitness unlike Americans. It intends on surviving …unlike Americans

        How will this end? No one knows.

        With Biden and Democrats leading with their emotions, the fallout of the strains might be the culling of America. Perhaps it is the answer to the wishes of the Left to kill off the Right and vice versa. Think of it: an infinitely small protein might have the last laugh.

        https://twitter.com/MeetThePress/status/1350814272704684033

        Dr. Fauci says he doesn't "want people to panic," but says there's an even "more ominous" variant lurking in South Africa & Brazil. "People need to realize there's more than one strain, [like the] U.K. one that has essentially dominated."

    2. Karen Ann, “ Their time would be better spent asking why 74 million people are so ticked off that they voted for the guy….and it has nothing to do with the all the ‘isms’ they like to throw around.”

      Because 81 million voted for Biden instead of trump. 74 million are ticked off because they were lied to thinking they were supposed to win. 81 million said, “huh, nope”.

  9. I find it amusing that the Democrats are so afraid of a 78 year-old Trump running again that they feel they must impeach and convict him.

    There was no call for violence in Trump’s speech but he did step in it when he listed all of the alleged irregularities. Do the Democrats really want to open that door during a trial?

    1. “ if you don’t fight like hell you’re not going to have a country anymore’’ is one of the phrases that goes outside of just listing irregularities and is mentioned in the articles. They’ve also noted his call with Brad Raffensperger, when instructed him to ‘‘find’’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.

      What I’m surprised they don’t mention are his lack of action following the realization that a violent mob he unleashed stormed the capitol. His admin not only failed to respond with force but blocked efforts by neighboring governor Larry Hogan to send Maryland’s national guard until Army Secretary McCarthy broke the chain of command. I assume this will come up at any senate trial along with reports of Trump walking around gleefully asking White House staff why they didn’t seem more enthused during the storming that threatened the transition of power, line of succession, and any checks and balances he had from the legislative branch.

      1. He also tweeted a complaint about Pence while there were insurrectionists chanting “hang Mike Pence” and looking for him.

          1. Yes, even though Twitter permanently suspended Trump’s account, the Trump Twitter Archive shows all of his tweets:
            https://www.thetrumparchive.com/
            That archive is searchable, and it also shows which tweets he deleted after posting them. Unfortunately, for those that were deleted by Trump, it doesn’t show how many times they were retweeted or liked prior to being deleted.

            At 2:24pm, Trump tweeted “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

            Earlier in the day, he’d tweeted “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!” and “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!,” so Trump’s afternoon tweet about Pence was clearly a reference to Pence’s choice to abide by his constitutional duty instead of doing what Trump wanted.

      2. Most of what you wrote in your comment is pure fiction. Trump never said “find enough votes”, that phrase was part of a longer and more detailed statement which you are not only taking out of context but being intellectually dishonest about. If you were so sure of your position you would not need to lie about it.

        How is it that the Capital Police, a force of 6000 cannot protect the Capital from 100 rightfully angry protestors. Seems you try to lay big government`s incompetency at the feet of this president but never did the same to others. Your comment is amusing at best.

        1. Jack– “If you were so sure of your position you would not need to lie about it.”
          ***
          Thank you for the information, but I would offer that not every error or misstatement is a lie.

          Sometimes, often in fact, an error is just an error.

        2. It’s not pure fiction.

          Here’s a transcript:
          https://www.chicagotribune.com/nation-world/ct-nw-trump-georgia-phone-call-transcript-20210104-ivcio2yuyfgm7onlm4vipxpmzu-htmlstory.html

          Trump said “All I want to do is this: I just want to find 11,780 votes, which is one more that we have because we won the state.” He talked about finding votes multiple times:
          “you’ll find that you have many different signatures. But in, in Fulton, where they dumped ballots, you will find that you have many that aren’t even signed, and you have many that are forgeries. OK? You know that. You know that. You have no doubt about that. And you will find you will be at eleven thousand seven seventy nine within minutes, because Fulton County is totally corrupt and so is she, totally corrupt.”
          “I personally think they’re corrupt as hell, but we don’t need that because all we have to do Cleta is find 11,000 plus votes.”
          “Look, Brad, I got to get, I have to find 12,000 votes and I have them times a lot, and therefore I won the state.”

          More than 100 people entered the Capitol Building and committed crimes (illegal entrance, breaking windows, theft, injuring police, etc.), and others committed crimes outside.

          It’s ironic that you complain “If you were so sure of your position you would not need to lie about it,” when you are making false claims. I’m not going to accuse you of lying, maybe you’re just ignorant. Can you bring yourself to admit that more than 100 people entered the Capitol Building and committed crimes, or do you need evidence to convince you? If you need evidence, why don’t you start with the fact that “The Justice Department has opened more than 275 investigations into the Capitol riot” (https://www.npr.org/2021/01/16/957593486/the-latest-on-the-federal-investigation-into-the-riot-at-the-capitol). You can also look at videos showing more than 100 people inside.

        3. Jack, posting the entire tweet is not being intellectually dishonest. Plus there were more than just 100 angry “protesters”. There were thousands of angry rioters. The FBI already has more than 300 open cases and counting. Many of those “protesters” have already admitted they were assaulting the Capitol because trump told them to.

          “ But others drew an even more direct link — telling the FBI or news organizations that they headed to the Capitol on what they believed were direct orders from the president issued at a rally that day.”

          https://www.msn.com/en-us/news/us/trump-said-to-do-so-accounts-of-rioters-who-say-the-president-spurred-them-to-rush-the-capitol-could-be-pivotal-testimony/ar-BB1cOxCy

          This can be brought up at the senate trial against Trump.

        4. @Jack Johnson, my quote came direct from the articles of impeachment. CommitToHonestDiscussion has found and posted the source of the allegation from the transcript of the call, but what you allege is me being intellectually dishonest is really just you being confused about the source of what I was quoting. Hopefully this will help you see clearly: https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ARTICLES%20-%20Final%201030%20-%20011121.pdf

    2. Oh yeah, wouldn’t want to have face again the guy who has never won the popular vote or risen above 49% approval job. Yeah, that would be terrible!

  10. Law professor Steve Vladeck –

    “… some commentators have gone further — arguing not only that Congress should not impeach and remove Mr. Trump but also that come Jan. 20, it cannot do so, because the Constitution doesn’t allow for the impeachment and removal of “former” officers. This argument is wrong as a matter of text, structure, historical practice and common sense. And Mr. Trump is the poster child for why, even after he leaves office, such accountability is not just constitutionally permissible but necessary. …
    “In describing the powers of the Senate to conduct an impeachment trial, [Article I, Section 3] provides that “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” (emphasis added). … the disqualification power is both the primary evidence of and the central reason the Constitution allows for the impeachment of former officers. Were it otherwise, an officer facing impeachment, or an officer who has already been impeached and is about to be removed, could also avoid disqualification simply by resigning. …”

    JT ignores this issue in his column. The House impeachment managers should introduce Vladeck’s column in their arguments.

      1. Grr. Trying again to get my name and icon to show up properly. Both the 8:57 and 9:02am comments cam from me, CommitToHonestDiscussion.

        1. Mespo, it’s totally unsurprising that you respond with an insult and are silent about Vladeck’s legal point. I’ll take his legal expertise over yours any day.

            1. You respond with more ad hom instead of engaging with his argument. Go ahead: explain why you believe Vladeck’s argument about Article I Section 3 to be “insufficien[t].”

              Again: I’ll take his legal expertise over yours any day. He’s won cases before the Supreme Court and published widely cited legal scholarship (e.g., his book on National Security Law). I’ve seldom seen you really engage with legal issues here. You’re much more fond of posting insults.

          1. Vladeck, you say? Never heard of him. Probably never will, again.

            If obscure eggheads judged the world, we’d all be hanged, including you.

              1. My thoughts are posted at 10:58, but you’re the one who made the appeal to authority, not me.

                When it comes to authority, we’ve got JT, a nationally-recognized constitutional scholar. You’ve got Vlasic or Vlacidick or whatever his name is.

                We’ll stick with JT.

                1. So, no response Diogenes.

                  Obviously one of the 2 possible penalties for conviction could be avoided by resigning if the Congress could not convict someone no longer holding office. Therefore,allowing conviction after leaving office is the only course which fulfills the meaning of the constitution.

                  What is your response?

                  1. Try him in criminal court, not before the Senate. He has criminal protections in criminal court. He does not have presidential privileges and protections in a Senate trial after he leaves office. I stated my full argument at 10:58 further up the comment board.

                2. The appeal to authority is only sometimes a fallacy: “Take the so-called ad verecundiam fallacy, the fallacious appeal to authority. Just when is it committed? Some appeals to authority are fallacious; most are not. A fallacious one meets the following condition: The expertise of the putative authority, or the relevance of that expertise to the point at issue, are in question. But the hard work comes in judging and showing that this condition holds … You appeal to authority if you back up your reasoning by saying that it is supported by what some authority says on the subject. Most reasoning of this kind is not fallacious, and much of our knowledge properly comes from listening to authorities. However, appealing to authority as a reason to believe something is fallacious whenever the authority appealed to is not really an authority in this particular subject, when the authority cannot be trusted to tell the truth, when authorities disagree on this subject (except for the occasional lone wolf), when the reasoner misquotes the authority, and so forth. …” (source: Internet Encyclopedia of Philosophy, https://web.archive.org/web/20210110162550/https://iep.utm.edu/xy/ ).

                  My appeal to authority isn’t problematic. Vladeck is an authority on what he’s writing about. He has a named chair at UT Austin Law School, has argued and won cases before SCOTUS, has authored legal texts, etc.

                  You’re welcome to stick with Turley, but he makes a lot of factual and reasoning errors in his columns, and neither you nor he have addressed Vladeck’s point.

                  Do you have a response to Vladeck’s argument, or are you going to continue resorting avoiding it.

                  BTW, your claim “you’re the one who made the appeal to authority, not me” is false. Both of us are doing it. It’s odd that you don’t recognize that you’re doing it too.

                  1. To be clear, my problem isn’t that you appealed to authority. My problem is the particular authority you cherrypicked to make your argument. JT and Alan Dershowitz are my chosen authorities. You can’t top them except maybe with Laurence Tribe. So what does Tribe have to say about it?

                    1. I’m not interested in comparing the legal profiles of multiple law faculty. They all have sufficient expertise.

                      I prefer to focus on their arguments. You’ve yet to address Vladeck’s argument. About disqualification, Turley said “The Trump trial would convert this supplemental punishment into the primary purpose of the trial. This did happen before …” He isn’t disagreeing with Vladeck about the possibility of the Senate disqualifying Trump from further office. If you want to know what Tribe says, look it up for yourself. I’m not your unpaid research assistant.

                    1. Yes, Turley has had disagreements with a number of law professors, as well as with lawyers working outside of academia. Vladeck is one of the former; Shaub is one of the latter.

                    2. Old guy, did you notice that we can’t reply to CommittedForInsanity? Is this a hack?

          1. I’m having to reply to myself to address Commit’s last question. I doubt anybody will read this, even me.

            As I’ve said elsewhere on this comment board today, a former President doesn’t have Presidential protections. Manifestly unfair to try him in the Senate, so no, I don’t buy that guy’s argument. He should be tried in criminal court where he’s afforded criminal protections.

            1. I read it since you addressed it to me.

              A former president doesn’t face any criminal penalties from a trial in the Senate, so it’s irrelevant that he doesn’t have the Presidential protections. The sole issues for a Senate trial after the person has left office is whether they want to convict the former president on the article(s) of impeachment and whether to disqualify the person from any future office.

              He should ALSO be tried for criminal conduct after he’s out of office. It’s not an either-or choice; it’s a both-and choice.

              1. IT IS RELEVANT that he has no presidential protections, because a Senate trial without such protections can prejudice any criminal proceedings against a former POTUS. I would contend that such prejudice is exactly what the Democrats want, among other things.

                He should be tried in the Senate if REELECTED. Then he’ll have presidential protections, again.

                1. How would it prejudice possible criminal proceedings? The lawyers can question and reject potential jurors who were prejudiced by the Senate trial.

                  Disqualification is one of the powers given to the Senate by the Constitution. It’s ridiculous to suggest that the Senate cannot disqualify him prior to him being reelected.

                  1. They shouldn’t disqualify him until he is an office holder. Then he’ll have the presidential protections he needs to make his case. The Senate shouldn’t “Pearl Harbor” a potential candidate.

                    1. They should absolutely disqualify him from any subsequent office.

                      He’s been lying for months about the election having been stolen, he tweeted criticism of Pence **while** the Capitol was being breached and rioters were changing “hang Mike Pence” and Pence was being whisked to safety, he failed to check on Pence during the insurrection and took days before talking to him, he was trying to thwart Congress’s approval of the EC vote **during** the insurrection, he still hasn’t adequately addressed the country about the insurrection, he tried to pressure Raffensperger to “find” nonexistent votes (and who knows whether he did the same with officials in other states), and on and on. He is totally unfit to ever again hold office.

                    2. “he tried to pressure Raffensperger to “find” nonexistent votes ”

                      You are making up stories again. Trump says some things that aren’t pleasing to anyone, but his mouth is bigger than his bite. Biden on the other hand has a mouth, used racist terms, has been wrong more than right and has demonstrated a path of corruption. Obama was a terrible President. Unlike Trump he didn’t fulfill his promises to the American people and made race relations worse.

    1. If the ‘and’ was an ‘or’, maybe. And JT sites only one other precedent, which was the guy who resigned. Vladeck makes it sound as if there are numerous precedents. ?

    2. Really? In what world but Vladeck does “and” have a different meaning? “And” means “and.” Removal AND disqualification. Not just disqualification.

      1. The votes for removal and disqualification occur separately. Someone who is removed is not simultaneously disqualified. Disqualification always occurs when the person is no longer in office (whether by removal, resignation, or end of the person’s term).

        1. But you need both — thus the “and.” Whether votes are done separately is meaningless when it comes to “and.”

          1. Most removal votes are not accompanied by a vote to disqualify, so I’m not sure why you’re saying “you need both.” The case of Belknap’s removal vote, which Turley has discussed a couple of times, also shows that the Senate can vote to convict someone who is no longer in office.

  11. Why would “privileges” that were valid, legal, constitutional, and accepted before the President leave Office not remain valid and usable in a Senate Trial for alleged High Crimes and Misdemeanors while in Office as President?

    If the President had conversations with the White House Counsel or other government Lawyers about matters relevant to the Impeachment prior to leaving Office…would those same conversations become immune from claims to being “protected”?

    Where does the notion of Due Process rear its slime covered head out of the swampy filth in all of this?

    I might be all wrong….but Impeachment should end upon a President leaving Office no matter how that occurs…end of term, death, removal by use of the 25th Amendment or simple Resignation.

    Purview of the Impeachment process is levied upon Congress….and the Chief Justice as a functionary after Congress kicks off the proceedings.

    If I were the Chief Justice today….I would refuse to have my name sullied by participating in this raw rank stinking bit of political stupidity.

    1. If I were the Chief Justice today….I would refuse to have my name sullied by participating in this raw rank stinking bit of political stupidity.

      Yeah, but Roberts’ enemies have pix.

  12. For those interested, Stephen Sackur attempted to argue that a majority determines what the Constitution means and what laws are valid in his interview yesterday with Alan Dershowitz, who opened by noting that the House had violated the Constitution five different ways in a single day. It’s worth a listen, if you have the time, not only for Dershowitz, but for Sackur who tries his best to argue that the House vote was “bipartisan’ and that Lawrence Tribe is the font of all wisdom and the ultimate interpreter of the Constitution and should not be maligned by the likes of Dershowitz. Fascinating display of partisanship.
    https://www.bbc.co.uk/sounds/play/w3cszbyj

      1. You can, if you like, interpret it that way.
        Historians will not do so if they are honest, nor should we. Bipartisan implies more than 10 in favor and 197 against.
        If ten members are enough to make a vote bipartisan, then I assume that had a single Republican voted for it, the vote also would have been bipartisan. What exactly is the critical mass needed to make something bipartisan? One? Five? Ten? Twenty?
        To call this vote bipartisan is to indulge in propaganda, whose practitioners often resort to attributing the characteristics and beliefs of one person or organization to another by association.
        To report honestly would be to note that the vast majority of Republicans in the House voted against impreachment, that there was no due process, that the vote was perfunctory, and that the impeachment followed an “ultimatum” by Pelosi to Pence to unseat Trump using the 25th Amendment.
        This was just the latest of many efforts to unseat Trump, including Crossfire Hurricane, Russian collusion, and three efforts to impeach– the first one failed to get enough support for a vote, the second won over Romney on one count, but the vote in the House was on strictly partisan lines and the Senate voted against removing him; the third was simply the logical extension of four years of trying to get Trump out of office and an indication that Pelosi & the Democratic leadership have neither patience nor manners, both of which would have required them to allow Trump to leave without further machinations on their part.

    1. Old guy, thanks for linking to this tremendous interview. As you say, “Stephen Sackur attempted to argue”, but he failed with Dershowitz because the Constitution is more than something that is twisted to make today’s point while being untwisted to make tomorrow’s.

      Dershowitz was clear in defense of the Constitution and defending against its politicalization.

  13. You could also have used Oliver Cromwell as an example. The Brits dug up his corpse, hung him, and then beheaded him. His head was passed around in the UK for years.

    On a more substantive point, I don’t think there is any way Roberts will preside at a second Trump impeachment trial. The Constitution requires the Chief Justice to preside when “the president” is on trial, but Trump will no longer be president. There is no other constitutional authority for a judicial branch official to preside over a Senate proceeding, and doing so would violate separation of powers. Even if one concluded that Roberts somehow had discretion to preside if asked, I’m pretty sure he would want no part of this and would respectfully decline. Having a Democratic politician preside instead will further undermine the legitimacy of this trial.

  14. Convict and remove.
    No “REMOVE”
    50% of the debate out the window.
    Is this the definition of a farce.

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