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. OT:

    Let’s hope that Trump pardons Edward Snowden and Julian Assange. Time is running out.

    Tweet

    Glenn Greenwald
    @ggreenwald

    If you actually care about doing everything possible to stop the persecution of Assange & Snowden – instead of pointlessly posturing online about it – what else would you do besides this👇?

    You think there’s a single other cable outlet that would host this? Or that it’d matter?

    Quote Tweet
    WikiLeaks
    @wikileaks
    · Jan 16

    Jimmy Dore: “The first person to be de-platformed was WikiLeaks and Julian Assange. If [Trump] knows what’s good for freedom of speech and freedom of the press, he should take this moment and pardon Julian Assange.”

    Tucker Carlson: “I totally agree” #Assange

    https://twitter.com/ggreenwald/status/1350846480177909767

  2. Professor, here are my two question to this statement:”Speaker Nancy Pelosi and other Democrats have stated that their primary interest is in the possible disqualification of Trump from holding future federal office.”
    1. Where do you see intention to strengthen voter integrity?
    2. Why should it be promising for President Trump (then 78) to make another bid as the election integrity he critizised will stay unchanged and the demographics will work against him?

    1. The Framers were competent and capable of precisely and accurately writing and legislating fundamental law.

      They wrote “and” NOT “or” and they meant it.

      They required removal “AND” disqualification, they did not present OPTIONS through the use of “OR” between the two.

      “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.

  3. “The speech [by President Trump] was reckless and wrong.”

    What was reckless — and what was “wrong”, Jonathan? I’ve read the transcript and can’t find any “fighting words” or calls for violence. And (of course) we now now that the folks who broke down the Capital doors did so WHILE THE PRESIDENT WAS SPEAKING and those people didn’t look like the people who attended Trump’s rally (they wore ANTIFA dress (helmets, maskes, etc.). And the FBI and Capital police now admit they had notice that the violence was planned days before.

    Shame on you, Jonathan!

          1. The link simply goes to his account.

            I’m not going to spend 10 minutes scrolling past weeks’ worth of old tweets in an effort to find what you say exists.

  4. I’m not really familiar with the Federal Rules of Criminal Procedure as they may relate to an impeachment trial in the Senate. However, I am wondering whether the presiding judge (Justice Roberts) could entertain a Motion to Dismiss on jurisdictional grounds. See Senator Lindsey Graham’s letter dated as of this date (01-17-21) to Senator Chuck Schumer.

    1. “THE”

      “THE PRESIDENT”

      “SHALL BE REMOVED FROM OFFICE”
      _______________________________

      Can you read English?

      The Framers wrote the “manifest tenor” of the Constitution in clear English.

      If a concept or rule is not in the Constitution, it was omitted and, thereby, excluded, and no individual has any power to amend the Constitution.

      “THE PRESIDENT”

      “SHALL BE REMOVED FROM OFFICE”

      Donald Trump will definitively and irrefutably NOT be “THE PRESIDENT” after January 20, 2020.

      Donald Trump will not be in office after January 20, 2020, and it will not be possible to “REMOVE” him from an office his is not in.
      _____________________________________________________________________________________________________

      Article 2, Section 4

      The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

      1. George, your reply is insulting! Did you really intend that? Indeed – the DJT will not be in office after January 20, 2021. Speaker Pelosi has not forwarded the Article of Impeachment to the Senate. My position is that after January 20, 2021 the Senate will not have jurisdiction to conduct an impeachment trial in which DJT would be the defendant PRECISELY because he will have left office. I apologize if my prose was not clear. I was an English teacher before I went to law school. And – yes – I did study Constitutional law in law school.

        1. “However, I am wondering whether the presiding judge (Justice Roberts) could entertain a Motion to Dismiss on jurisdictional grounds.”

          – Cassidy
          ________

          Of course, you are not wondering anything.

          We all know the impeachment article relates to “THE PRESIDENT” and that Donald Trump will NOT be the president in three days.

          We all know that, by fundamental law, there can be no trial, no judge, no motions and no jurisdiction.

          You preposterously and insidiously attempt to insinuate your erroneous, mental meanderings into law, influence the naive and susceptible, and perpetrate a fraud, wittingly or unwittingly, on readers and the American people.

  5. Moscow Trials

    The Moscow Trials were a series of show trials held in the Soviet Union at the instigation of Joseph Stalin between 1936 and 1938 against Trotskyists and members of Right Opposition of the Communist Party of the Soviet Union. There were three Moscow Trials, including:

    the Case of the Trotskyite-Zinovievite Terrorist Center (Zinoviev-Kamenev Trial, or the “Trial of the Sixteen;” 1936);
    the Case of the Anti-Soviet Trotskyist Center (Pyatakov-Radek Trial; 1937); and
    the Case of the Anti-Soviet “Bloc of Rights and Trotskyites” (Bukharin-Rykov Trial, or “Trial of the Twenty-One;” 1938).

    The defendants of these were Old Bolshevik party leaders and top officials of the Soviet secret police. Most defendants were charged under Article 58 of the RSFSR Penal Code with conspiring with the Western powers to assassinate Stalin and other Soviet leaders, dismember the Soviet Union, and restore capitalism.

    The Moscow Trials led to the execution of many of the defendants. They are generally seen as part of Stalin’s Great Purge, an attempt to rid the party of current or prior oppositionists, especially but not exclusively Trotskyists, and any leading Bolshevik cadre from the time of the Russian Revolution or earlier, who might even potentially become a figurehead for the growing discontent in the Soviet populace resulting from Stalin’s mismanagement of the economy…

    – Wiki

  6. Show Trial

    A show trial is a public trial in which the judicial authorities have already determined the guilt, and/or innocence, of the defendant. The actual trial has as its only goal the presentation of both the accusation and the verdict to the public so they will serve as both an impressive example and a warning to other would-be dissidents or transgressors.[2] Show trials tend to be retributive rather than corrective and they are also conducted for propagandistic purposes.[3] The term was first recorded in 1928.[4]

    – Wiki

  7. Interesting. Not that I’d have a problem with an impeachment trial of trump after leaving office — I’m not sure he ever fully *enterred* office to begin with before his advisors agreed Trump would be better off getting down at rallies with the MAGAS and Q’s as they dedicated to the standard desires of republicanism: massive deregulation and tax breaks skewed to the upper income brackets. And I truly despise the term ‘snap impeachment’. Direct evidence of trump’s work is evident in video of the invasion of the Capitol on every network worldwide. A solid opening argument for the prosecution of trump may be just to play all the collected visual evidence around the 6th, from the pre rally to the invasion, to the actions of the insurgents once in the Capitol. it would be beyond compelling and would make any ‘no’ vote on the part of the republican senate obviously seditionist and traitorous.

    Truthfully, in the interest of full accountability, I’m not sure an impeachment is enough for Trump. A full commission diving into every aspect of Trump’s crimes in office to be reffered to criminal court might be a more effective approach? Not like Trump doesn’t fully deserve being put under the microscope…, being removed and banned from future political office and criminal court are the logical extentions of trump’s deeds in office. I mean, the man came in to office by stealing $50 million from his inauguration fund and is committing daily fraud by fundraising off the big lie that Biden didn’t win the election. Standard trump playbook and fully illegal behavior deserving attention in criminal court.

    Also, why just go after Trump? A bunch of republican pols have fundraised off the big lie…, there’s enough fraud for the whole block.

    Elvis Bug

  8. Moscow Trials

    The Moscow Trials were a series of show trials held in the Soviet Union at the instigation of Joseph Stalin between 1936 and 1938 against Trotskyists and members of Right Opposition of the Communist Party of the Soviet Union. There were three Moscow Trials, including:

    the Case of the Trotskyite-Zinovievite Terrorist Center (Zinoviev-Kamenev Trial, or the “Trial of the Sixteen;” 1936);
    the Case of the Anti-Soviet Trotskyist Center (Pyatakov-Radek Trial; 1937); and
    the Case of the Anti-Soviet “Bloc of Rights and Trotskyites” (Bukharin-Rykov Trial, or “Trial of the Twenty-One;” 1938).

    The defendants of these were Old Bolshevik party leaders and top officials of the Soviet secret police. Most defendants were charged under Article 58 of the RSFSR Penal Code with conspiring with the Western powers to assassinate Stalin and other Soviet leaders, dismember the Soviet Union, and restore capitalism.

    The Moscow Trials led to the execution of many of the defendants. They are generally seen as part of Stalin’s Great Purge, an attempt to rid the party of current or prior oppositionists, especially but not exclusively Trotskyists, and any leading Bolshevik cadre from the time of the Russian Revolution or earlier, who might even potentially become a figurehead for the growing discontent in the Soviet populace resulting from Stalin’s mismanagement of the economy…

    – Wiki

  9. Why is a speech is which a person truly believes election interference took place and stating as much and then asking that citizens peacefully protest at the steps of Congress be wrong. I might agree had he said, Go down there, tear the place down, bust in and destroy property and make members feel afraid. That would be wrong and I would have no problem. His rhetoric was not nearly as divisive as “”I’m surprised their are not uprisings all over the country!” and comments made by our new VP to be along with Maxine, “get in their faces Waters” give me a break professor… There was nothing wrong with what he said. What some did was wrong…but they did it all by themselves. I understand their anger, and I can understand why they felt no one is listening…because no one is listening. The left uses that excuse anytime they feel like burning cities. There is systemic election fraud all across this country. See I said it so it must be true right!!! Systemic Election Fraud. see I said it again. It means the same thing “systemic racism means.” its systemic…..

    1. The election fraud began with the deliberate release of “The China Flu, 2020” nine months before the election, proceeded with the nullification and voidance of the Constitution and Bill of Rights, shutdown of individual freedom, shutdown of free enterprise, quarantine of citizens, imposition of curfews, censorship, suppression of adverse Biden news, appropriation of free press, blockage of access to social media, etc., and has concluded with pervasive and manifest violations of election laws, unsecured computers, “ballot harvesting,” tampering with vote counts and, finally, the national deployment of the army from all 50 states for total suppression of the people of the United States of America.

      “Fundamental Transformation” into totalitarian global communism.

      1. Even if true so what? Trump can’t ” command ” anyone to do anything. If some feeble minded individual believes that it is on them , not Trump.

  10. JT misses the point that Trump did lie for months and whip his supporters into a murderous frenzy. Impeachment is the proper political venue for the House and Senate to stand up and say that the line is drawn. Also with the Cadaver Synod, the defendants were dead and could not defend themselves. Trump is quite able to put on a defense.

    1. Trump will serve 4 more years as President.

      Your misery is just beginning.

      Nothing can stop what is coming…

    2. Gee, he lied for months and whipped supporters into a frenzy…? Democrats and the media spent 4 years pushing the collusion lie and continued even after a debunking by a special counsel. They further lied claiming no FISA abuse took place, the Steele Dossier was not central to the FISA warrants, and Carter Page was a Russian agent. Let’s also not forget that Democrats whipped up their fans into a frenzy over lies about police committing some kind of weird genocude (I say weird because this supposed genocide takes the lives of only about 15-16 people a year) against black Americans which has caused months worth of riots, looting, and arson. So please, go on and on about the big bad Trump lying and “whipping” people into a frenzy as if you are Rip Van Winkle and have slept through the last gfour years of non-stop Democratic sedition and incitement.

      1. Both the Mueller Report and the Senate Report confirmed the bulk of the 2016 Russian “hoax” to be true. The only part not confirmed is that extent that the Trump campaign actively sought out Russian assistance. Also these endless prosecutions also had quite a number of Trump campaign officials convicted of federal crimes.

        1. You just proved my point! You still believe a lie but you think if others believe a lie it is somehow inciting riots… The Mueller report found no collusion. But here you are claiming it did the opposite. You are effectively inciting riots, sedition, and insurrection by your own definition! Bless your little heart…

          1. The sista doesn’t “believe” the lie, she propagates the lie for the party.

            In return, the party rewards her generously.

            Without affirmative action, generational welfare, quotas, forced busing, WIC, SNAP, TANF, HAMP, HARP, HUD, “fair” housing, non-discrimination, Obamacare, etc., etc., etc., she would be compelled to rely on her own devices for sustenance and perpetuation.

            The problem is, there is nothing accretive in that collection.

            Freedom and Self-Reliance can be very difficult for some.

        2. Both the Mueller Report and the Senate Report confirmed the bulk of the 2016 Russian “hoax” to be true.

          Tap your ruby slippers and keep telling yourself that the all powerful $100,000 worth of Facebook ads purchased by a catering company justified everything.

          1. The extent of the Russian interference was far more widespread then just buying Facebook ads, and you know it.

              1. Maria Butina pled guilty to conspiracy against the US as a result of the Mueller probe, and dozens of Russians have been charged in the hacking and leaking of the DNC which our intelligence agencies say came direct from Russia. Trump’s convicted associates aside that sounds like more interference than none from Russia.

              2. From the GOP majority led Senate Intel Comm Report released in August:

                “(U) The Committee found that Russian President Vladimir Putin ordered the Russian
                effort to hack computer networks and accounts affiliated with the Democratic Party and leak
                information damaging to Hillary Clinton and her campaign for president. Moscow’s intent was
                to harm the Clinton Campaign, tarnish an expected Clinton presidential administration, help the
                Trump Campaign after Trump became the presumptive Republican nominee, and undermine the
                U.S. democratic process.
                -WikiLeaks actively sought, and played, a key role in the Russian
                influen~ery likely knew it was assistin a Russian intelli ence influence
                effort. The Committee found si nificant indications tha
                At the time of the
                first WikiLeaks releases, the U.S. Government had not yet declared WikiLeaks a hostile
                organization and many treated itas a journalistic entity.
                (U) While the GRU and WikiLeaks were releasing hacked documents, the Trump
                Campaign sought to maximize the impact of those leaks to aid Trump’s electoral
                prospects. Staff on the Trump Campaign sought advance notice about WikiLeaks releases,
                created messaging strategies to promote and share the materials in anticipation of and following
                thdr release, and encouraged further leaks. The Trump Campaign publicly undermined the
                attribution of the hack-and-leak campaign to Russia and was indifferent to whether it and
                WikiLeaks were furthering a Russian election interference effort. The Committee found no
                evidence that Campaign officials received an authoritative government notification that the hack
                was perpetrated by the Russian government before October 7, 2016, when the ODNI and DHS
                issued a joint statement to that effect. However, the Campaign was aware of the extensive media
                reporting and other private sector attribution of the hack to Russian actors prior to that point.
                (U) Trump and senior Campaign offici.als sought to obtain advance information about
                WikiLeaks’s planned releases through Roger Stone. At their direction, Stone took action to gain inside knowledge for the Campaign and shared his purported knowledge directly with Trump
                and senior Campaign offictals on multiple occasions. Trump and the Campaign believed that
                Stone had inside information and expressed satisfaction that Stone’s information suggested more
                releases would be forthcoming. The Committee could not reliably determine the extent.of
                authentic, non-public knowledge about WikiLeaks that Stone obtained and shared with the
                Campaign.

                https://www.intelligence.senate.gov/sites/default/files/documents/report_volume5.pdf

        3. What Trump campaign associates were convicted of “colluding” or conspiring with Russia in the 2016 campaign or election? Oh, don’t bother, I know the answer. NOT ONE! ZERO, ZIP. Manafort was convicted of crimes that were a part of his work in Ukraine, not with the Trump campaign. Papadopolous and Stone committed process crime which are crimes that occurred long after the campaign and election, and as a result of the election. Cohen plead guilty to a campaign finance violation he probably could have beat but he was hoping that doing so would get him a better deal (which he didn’t get) and Flynn plead guilty after being bankrupted, having to sell his house, and his family was threatened and now has officially never been convicted of any crime at all. So please, tell me again about these wonderful federal convictions…

        4. Not true. But the part about not seeking Russian assistance is literally the whole case, which you admit to. And those who were convicted were convicted of process crimes. Nothing to do with the election.

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