This week, a group of scholars wrote an open letter endorsing the constitutional basis for trying former President Donald Trump in a retroactive impeachment trial. The letter contains many individuals who I know and respect. I encourage you to read their case for such retroactive impeachment. As I have said in every column and posting on this subject, this is a close question upon which people of good-faith can disagree.  However, I would like to respond to the letter and offer a countervailing view.

At the outset, it is important to note there is precedent for such a trial.  That was the case of William Belknap, which I will address shortly. It is also true that such cases occurred in England, as we have discussed in relation to the case of Warren Hastings.  These cases show that impeachment was viewed as having a purpose other than removal. That is obvious from the fact that they were already out of office. Over twenty years ago, I wrote a law review article explaining how these cases reflect a desire to pass judgment on wrongdoing as well as to secure future disqualification. See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke Law Journal 1-146 (1999). I stated that such trials play an important dialogic role even on a retroactive basis. I still believe that. There is a legitimate desire of many to condemn the actions of President Trump. I joined many in that condemnation. Indeed, I criticized his speech while it was being given, opposed the challenge to the electoral votes, and objected to the President’s false statements concerning the authority of Vice President Michael Pence.

However, there remain two important threshold questions for the Senate. First, whether a retroactive impeachment is a legitimate constitutional function. Second, whether a retroactive impeachment is a sound constitutional practice.  The letter addresses both questions. While I still hold the same views on the history and value of these trials, I now have reservations on both questions. I view the balance of the benefits and the countervailing costs of such trials differently. I am not alone in that view among academics and other experts, including recently former federal judge Michael Luttig.

THE CONSTITUTIONAL TEXT

Article I states that the power of impeachment and trial are shared by the two houses but limits the power of Congress by expressly stating 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.”

Article II contains the key impeachment provision and standard, stating “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.”

For my part, I am admittedly fixated on the fact that impeachment refers to the removal of “the President” and other officials in office. I understand that many do not adhere to a strong textualist approach to the Constitution. However, there is a glaring anomaly in the text. Indeed, the primary stated purpose of the trial is to determine whether “the President . . .  shall be removed.” At the second Trump impeachment trial, the president will be Joe Biden, not Donald Trump. So the Senate will hold a rather curious vote to decide whether to remove a president who has already gone. Moreover, Chief Justice John Roberts is not expected to be present to answer these questions because there is no president to try. Article I states “When the President of the United States is tried, the Chief Justice shall preside.”  So the Senate will get someone else.  The question is who is being tried. Is he a president? Obviously not. Is he a civil officer? No, he is a private citizen. A private citizen is being called to the Senate to be tried for removal from an office that he does not hold.

Every other part of the Constitution using the term “the President” or such specific officeholders is a reference to the current officeholder, not anyone who has ever held that office. Otherwise, Donald Trump could still be issuing pardons.

The letter states the obvious countervailing argument that emphasizes the allowance for a future penalty in the form of disqualification from office:

“In other words, the Constitution’s impeachment power has two aspects. The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power.

Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires. But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.”

I made a similar point in 1999 in discussing the Belknap case. However, as a matter of constitutional interpretation, I am not so confident that a reasonable interpretation must treat removal and disqualification as distinct and equal “aspects.” Removal is stated as the question for the Senate to answer in the trial of “the President.” The Senate may, in its discretion, add disqualification after a president has been removed.  The second optional penalty language was expressed as a limitation on the authority of the Senate and again references removal: “shall not extend further than to removal from Office, and disqualification.” Since the Senate does not have to disqualify, it would not seem to be an interchangeable or equal consideration in that respect. Moreover, it is obvious that the Senate could not simply hold disqualification trials under this language. Its authority to disqualify is not triggered until after “the President” has been removed from office.

To support the broader interpretation, the letter states that:

“If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”

Again, it is an argument that I raised in 1999. An official could clearly evade such punishment with a resignation.  Richard Nixon avoided impeachment itself with a well-timed resignation. These scholars are arguing that Nixon could still have been impeached and removed after he left office. Indeed, there is no time limit to such retroactive trials which could come years later as easily as it could come weeks later.  It is also true that the Framers did not design impeachment to be so easily manipulated by shifting political balances.  They expressly wanted to make it difficult and rarely used.  What they did not discuss was a lifetime eligibility for impeachment trial for anyone who serves in federal office. That is a notable omission at a time when political opponents were already trying to destroy each other. There was mention of the Hastings trial but the Framers rejected a number of English practices. If impeachment applied to private citizens, one would have expected a substantive discussion given the anti-federalist mistrust of the Constitution and the rising hostility between the Federalists and the Jeffersonians. The greater danger in my view is not evasion by office holders but opportunism by Congress. A new Congress with a new majority can seek retroactive impeachments and disqualifications for figures in an opposing party.

Nevertheless, again, there is a fair debate on an unresolved issue of constitutional interpretation. Over the decades, I have militated toward more textual reliance on such questions but there is text on both sides to sustain this debate.

THE CONSTITUTIONAL PRACTICE

The letter supports its constitutional interpretation by noting that “[h]istory supports a reading of the Constitution that allows Congress to impeach, try, convict, and disqualify former officers.” Again, we are in agreement but only to a point. There are only two American retroactive cases before the Senate. Only one truly resulted in a trial. However, that is not particularly strong precedent for the constitutional interpretation (as opposed to the value of such trials discussed earlier). In the case of William Blount, the Senate rejected the case.  Blount did not even show up because he contested the very basis for an impeachment trial of a private citizen. While this was a case involving a former legislative not executive official, the Senate refused to hold a trial.  Notably, that rejection occurred when most signers of the Constitution were still alive. Indeed, Blount was one of those signers. Others Framers expressly like Justice Joseph Story also questioned the concept of retroactive trials. Story wrote “If then there must be a judgment of removal from office, it would seem to follow that the Constitution contemplated that the party was still in office at the time of the impeachment. If he was not, his offense was still liable to be tried and punished in the ordinary tribunals of justice.”

The second case is William Belknap. I will not repeat those facts here. However, this issue was again raised and senators argued that it was entirely inappropriate to try the former Secretary of War.  Almost half of the Senate voted to dismiss the case on a threshold vote. Belknap was then acquitted.  That certainly shows that a majority viewed impeachment as extending beyond removal for the purposes of a trial. It also shows considerable opposition to that proposition.  We have one contested case that resulted in an acquittal.

There were also English cases like Warren Hastings, but that case also resulted in acquittal and the eventual punishment of the main proponent of impeachment. The case was viewed as abusive and intemperate. The case did show again a desire for a ruling on the underlying wrongdoing and shows how such trials can have such an important dialogic role. I still view the cases as showing how impeachment trials can have meaning beyond the sole value of removal. That is also why I stated in the Clinton and Trump impeachment (and recently in the second Trump impeachment) that I believe the House should impeach a president up to the last day in office if it believes that he committed a high crime and misdemeanor. I believe the Senate can remove a president up to the last day for the same reason. I would still reject a snap impeachment but if they have hold a sufficient hearing and create a record for the Senate, the value of such impeachments go to the condemnation of conduct. These trials play an important role in renouncing abusive or corrupt practices. Moreover, I do not view a second Trump trial as being solely about the desire to disqualify him from future offices. There is a legitimate desire to speak as an institution against the conduct leading up to the Capitol riot.

The problem from my perspective remains the balancing of such values against the countervailing costs. The Trump impeachment only magnified those concerns.  For the first time in history, the House used what I have called a “snap impeachment” without the traditional hearing or formal opportunity for a president to respond. The House could have waited a couple days to allow such a hearing to occur. Instead, it used a snap impeachment and then sat on the article of impeachment for many days — similar to what it did in the first Trump impeachment. The Senate would then hold a retroactive trial for someone who is now a private citizen.

Under this approach, any new Congress could come into power and set about disqualifying opponents from public office despite their being private citizens. A Republican Congress could have retroactively impeached Barack Obama or retried Bill Clinton. They could insist that there is no escaping impeachment by merely leaving office.  That is why, even if the Senate does not view this as extraconstitutional, it should view this trial as constitutionally unsound.