The Case Against Retroactive Impeachment Trials: A Response To The Open Letter Of Scholars

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 PresidentVice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, TreasonBribery, 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.

356 thoughts on “The Case Against Retroactive Impeachment Trials: A Response To The Open Letter Of Scholars”

  1. During the first Trump impeachment Turley faulted the House for not, in the face of Trump’s blocking of all subpoenas – going through the very long process of appealing and then reappearing to the courts before proceeding with impeachment. Obviously, this goes on for years with a litigious President, as it has with his tax returns.

    So a President should be able to delay everything for as long as he can. And then everything should be considered moot when he is out of office. That seems to be a recipe for never holding Trump accountable, which of course is Turkey’s main goal.

    It is always too early or too late to do anything about Trump’s corruption, in Turkey’s view. And it always will be.

    1. It may come as a surprise to some but the simple act of calling someone corrupt is not enough to convict, even though the party in power would like to think so. In Trump’s case they would probably prefer “Trial by Ordeal”. I’m sure they would set that as a precedent if they could. There is no reason to impeach a president, when he is not president, when the motivating purpose for impeachment is removal from office. That is unless the plain meaning of a text is contorted to fit partisan reasoning. In this case it serves no purpose other than to persecute Donald Trump because they can.

    2. Professor Turkey’s argument was about the speed at which the House moved and the paucity of the evidence they chose. He did. It say President Trump could not be impeached. His point was on the course they chose.

    3. “That seems to be a recipe for never holding Trump accountable”

      The idea behind impeachment is to put a man out of office.

      The idea behind the ballot box is to put a man in office.

      Why do you wish to deny the voter his choice?

    4. “And then everything should be considered moot when he is out of office. ”

      Not true. The Constitution explicitly invests the regular courts with prosecuting a former civil official.

  2. Impeachment’s purpose in the Constitution is to provide a check on Presidential abuses of power. Given that purpose, why would the lame duck phase of an outgoing President be exempted from that deterrence? It is in the circumstance of the President who possesses self-righteous hubris, or is blinded by conspiratorial paranoia, that the temptation is greatest to defy the Electoral College with a plot such as Trump hatched with John Eastman, Rudy Giuliani and others.

    Think about the damage an outgoing President could do to get even with perceived enemies. Should not the deterrent shadow of Impeachment and lifetime ban of Office hover over an outgoing President during an “adversarial” transition? This phase of a Presidency obliges the greatest of self-discipline and loyalty to the Constitution, and thus posits some of the greatest tests of Presidential character. To auger that Impeachment evaporate as a countermeasure at the moment of becoming a private citizen, either by resignation, invocation of the 25th Amendment, or expiration of term, weakens deterrence of misconduct, and possibly invites Impeachable behavior to be attempted on the assumption of it being consequence-free.

    Is that how we want this episode to end?…with a lowered shield on Presidential misbehavior in the latter days of a Presidency? In the case of truly heinous or reckless misconduct involving preventable loss of life, should a President be allowed to plan in advance to resign or term-out, and then reappear as a Presidential candidate at the next opportunity?

    Because Trump’s “Hail Mary” plan was to subvert the Electoral College, and evidence of this plan can be found going back to public utterances of Mr. Guiliani going back to early December, completion of the Senate trial is warranted. There is no greater threat to the Constitution than allowing a paranoid conspiracy-theorizing President attempt to subvert an election to “save America”. If his plot had moved ahead to a House Vote to Chuse the President, him winning 26-24, it would have aroused a violent and convulsive response the likes of which we’ve not seen since the Civil War. To have acted this recklessly, what scheming behavior would be more Impeachable?

    1. The vitriol of these comments is amazing to me. Legally challenging election results when done in 2000, 2004, 2016 was excellent Sturt-ship of Democracy and defending the republic and now becomes a plot and “a lowered shield on Presidential misbehavior in the latter days of a Presidency…A case of truly heinous or reckless misconduct.” We have had enough of the hating, this endless and insane Hyperbole is what will and is causing the increased strife in America today. In 2016 the violence was intense at the Inauguration and 3 years later it was treated as Nobel in nature and when such behavior is condoned and protected with the wave of the hand that will it ensure the status quo becomes lowered. This is round 2 of escalations and will create similar unwanted circumstances. What is next The Bolshevik-Menshevik Split? The party of hate is cloning itself in a desire to create -I don’t know what, complete war? Well screw you we will not bite, We will not take up arms because that is the enemies pride, stop your hate filled vendettas BEFORE IT IS TOO LATE ! We all suffer the consequences of this endless insane rant. Hate holds the left together and so the beat goes on…and on …and on. Even in victory they hate and hate and hate. We see you haters and we will no longer engage. All we are saying is give peace a chanch.

      1. Oh, I thought you were referring to Republicans when you were talking about hate. Isn’t hate, lying and bullying what Trump is all about?

  3. 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.

    Nothing other than the fact that the provision prescribes a mandatory punishment that can’t be imposed on someone who is no longer in office.

    This stuff isn’t complicated, and the “scholars” are dissembling partisans. This is no different from interpreting a loan document or an office lease. From a legal perspective, the Constitution is just another contract.

    1. William_jd, “ Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires.”

      Here Turley is wrong on what impeachment actually means. Turley loves to split hairs and scrutinize literal meanings. It’s strange that he sees the term “impeachment” as a means of removal. The term impeachment alone does not mean removal. Impeachment is only charging the president with the offense. The process of removal is entirely different and separate from removal. The constitution clearly makes this distinction by delegating each individual act to the house and senate. The House impeaches the president. The senate has a separate duty to decide to convict and remove him.

      The constitution only mentions impeachment not removal. Literally the very fact that a president has been impeached means he shouldn’t be allied to run for office again.

  4. 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.

    What a bunch of dissembling Bolshies!

    Nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office other than the language that prescribes a mandatory penalty that can’t be assessed against those no longer in office.

    This stuff is not complicated. It’s exactly the same thing as interpreting a provision in a loan document or an office lease.

  5. Another thought fellow slaves. The judicial picks of president Trump decisions are now becoming clearer. With McDonnell’s impeachment talk it is fair to say the judges are tainted as well. Remember two of these judges in Georgia blocked a key component of a forensic audit. The house slaves content in their elevated status could care less about us field slaves. So who recommended these judges to president Trump and was the hammer used to suborn their ruling.

    1. The SC justices are appointed for life.

      If one is worried about the power they have then one should be insisting that Congress not the Supreme Court does the legislating.

  6. I would think Congress should be able to retroactively impeach and convict a corrupt President who issues a bunch of pardons to his corrupt friends and allies political supporters and donors in his final days in office, without even going through the usual Department of Justice process to vet them. Otherwise, what remedy is there against such Presidential corruption?

    We had a good example of that this week. Impeachment articles should be expanded.

    1. “Otherwise, what remedy is there against such Presidential corruption?”

      The ballot box.

      What makes you think the most political figures in our country are less corrupt than the common working person?

    2. Yep, Billy, I can’t wait to impeach Bill Clinton for some of his despicable pardons. Or was that before your time or history reset?

    3. You are talking about Bill Clinton, obviously.

      Sure, let’s impeach Bill Clinton for the pardons he gave for pay and to terrorists on Clinton’s last day in office.

  7. Yes, a Republican Senate could have retroactively impeached Bill Clinton and Barack Obama if they could muster 2/3 vote to convict and a majority in the House. Then they could not be President again. Hard to
    Imagine what the charges would have been against Obama, but I am sure you could invent something. Heck, a Republican already filed articles of impeachment against Biden on his first day.

    But you may want to check the Constitution again. They cannot be President again anyway, having each served two terms. So I don’t really worry about that one. Maybe they could impeach a 98 year old President Carter.

  8. From their open letter:

    “. . . the conviction of a current officer.”

    Then, later, this:

    “[N]othing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office.”

    Except, of course, for the word “current.”

    Neither Belknap nor Hastings are the best precedents. Nixon is.

  9. I look at it this way. Impeachment leads to removal *and*… If there is no removal there is no *and*.

    If the official resigns before the final judgement is rendered the decision of disqualification should be at the ballot box.

    1. Anonymous, the problem here is that trump was impeached while still in office. The process doesn’t just stop because he’s no longer president. The senate doesn’t just go, “ oh well we can’t do anything now because he left office”. No. The senate still has to finish its part in the process. They still have to try him and they can try him on absentia if they want.

      1. “The senate doesn’t just go, “ oh well we can’t do anything now because he left office””

        Why not?

        An impeachment trial of a private citizen with future disqualification on the line makes impeachment that much more political, something found not desirable by those who wrote the Constitution. If there is no impeachment, there is no ‘and’.

        If you want the ‘and’ then (if they had the power and who would want to give them such power) Hillary could have been impeached as a private citizen just to prevent her from running. Supposedly we elect our leaders at the ballot box. Once the official leaves office shouldn’t that decision be left in the hands of the voters?

        1. S.Meyer, “ The senate doesn’t just go, “ oh well we can’t do anything now because he left office””

          Why not?”

          Because the process never ended. The senate still has to do its part. Impeachment is a two step process that the constitution REQUIRES the senate to decide whether to convict or acquit.

          It is ironic that the very people who complained states didn’t follow their laws on election issues are essential saying we don’t need to follow ours on impeachment.

          Once the house did its part, the senate must do theirs. They can’t constitutionally just leave it at that.

          1. Oh on the contrary Svelaz. All the Senate has to do is say “this is not constitutional in our opinion therefore we resolve not to prosecute the trial.

            Nobody can second guess them on that, not even SCOTUS, due to the separation of powers doctrine. All it takes is a majority vote.

            Im sorry to give you these legal pointers Svelaz because I know you dislike me, but there is not charge for that opinion.

            Sal Sar

            1. Anonymous (sal sar),

              “ Oh on the contrary Svelaz. All the Senate has to do is say “this is not constitutional in our opinion therefore we resolve not to prosecute the trial.

              Nobody can second guess them on that, not even SCOTUS, due to the separation of powers doctrine. All it takes is a majority vote.”

              That is completely wrong on two points. First the senate does not have the power to determine what is and isn’t constitutional. They don’t get to decide that. SCOTUS does. It’s their primary responsibility under the constitution only they determined whether something is constitutional or not. Not the senate or the house or the president.

              Second. The separation of powers doctrine doesn’t apply here because the senate cannot constitutionally determine on its own whether something is constitutional or not. That with violate the separation of powers doctrine itself.

              Your “legal pointers” are not really pointers, just “pointers” made out of ignorance.

              1. Not wrong. Every branch has both the practical necessity of estimating the extent of its own constitutional powers, and they also have the practical power of defining them.

                Also not wrong because while SCOTUS pretends to be the final authority on every question of constitutional law, its own decisions show that even it agrees that it is not.

                Your understanding of separation of powers doctrine as being solely the province of the judiciary, is actually a misunderstanding, but a widely held one. Thus, your overconfidence in your own opinion.

                I am confident that I understood my constitutional law class quite well since I got an A in it, decades ago, instructed by a liberal ACLU’er of goodwill, and the hundreds of cases I have read since then. I have actually made money arguing points of constitutional law. But you are free to consider me poorly if you like

                And you are also free to decline the gift of information which I provided you. Have a great day

                Sal Sar

                1. Anonymous (sal sar),

                  “ Also not wrong because while SCOTUS pretends to be the final authority on every question of constitutional law, its own decisions show that even it agrees that it is not.”

                  SCOTUS *IS* the final authority on every question of constitutional law. It’s their primary role.

                  “ The Supreme Court has the power to interpret the constitution as the final interpreter of the constitution.

                  It is necessary to who vest this power in the Supreme Court to protect the constitution against arbitrary interpretation by other organs of the government.” https://blocles4u.com/supreme-court-of-india-powers-and-functions/

                  Notice that last sentence.

                  1. Do you realize you gave me a link to the Supreme Court of India?

                    Look, I read Lawrence Tribe’s entire book on constitutional law. I don’t need google on this subject.

                    But if you do, then get a relevant citation, ok?

                    Sal Sar

                    1. Anonymous (sal sar), you’re right I linked to India’s Supreme Court, but amazingly their concept is identical to ours. Here’s the relevant citation, correct one.

                      “ Federal courts enjoy the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases. The courts, like Congress, can compel the production of evidence and testimony through the use of a subpoena. The inferior courts are constrained by the decisions of the Supreme Court — once the Supreme Court interprets a law, inferior courts must apply the Supreme Court’s interpretation to the facts of a particular case.”

                      https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/

                      The court has sole power to determine what is and isn’t constitutional. Not the senate as you claimed.

                    2. Sal writes: ““ Oh on the contrary Svelaz. All the Senate has to do is say “this is not constitutional in our opinion therefore we resolve not to prosecute the trial.Nobody can second guess them on that, not even SCOTUS, due to the separation of powers doctrine. All it takes is a majority vote.”

                      You write: ” That is completely wrong”

                      That is because you don’t understand the difference between opinion and everything else. You also don’t seem to understand the separation of powers that Sal brought up.

                2. Anonymous (sal sar),

                  “ Not wrong. Every branch has both the practical necessity of estimating the extent of its own constitutional powers, and they also have the practical power of defining them.”

                  You stated, “ Oh on the contrary Svelaz. All the Senate has to do is say “this is not constitutional in our opinion therefore we resolve not to prosecute the trial.”

                  Estimating the extent of their own constitutional powers is not the ability to determine whether something is constitutional or not. The senate has no power to determine whether something is constitutional or not. They can argue they can determine what their powers are under the constitution, but not whether anything IS constitutional. You’re confusing two different arguments here.

                  1. As I said. Please read Marbury v. Madison. This is the case that established “judicial review.” And as a precedent, it is limited.

                    I understand your opinion. I held it myself until about 2 weeks into my class on constitutional law when the professor finally hammered it through my thick skull that EVERY BRANCH NECESSARILY ESTIMATES ITS OWN POWERS

                    AND IN SOME INSTANCES THE SCOTUS DOES NOT PRESUME TO TELL THEM THEY HAVE MISJUDGED THEM

                    Please read this entire wiki article before you presume to lecture me more. thank you.

                    https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States

                    Sal Sar

                    1. SVELAZ

                      LEST YOU FORGET, THE CONGRESS ITSELF CAN REWRITE THE CONSTITUTION

                      OBVIOUSLY THUS, THE FOLLOWING STATEMENT YOU MADE IS ALSO LITERALLY FALSE

                      “The senate has no power to determine whether something is constitutional or not.”

                      Folks. please understand that it is NOT SCOTUS which is the ultimate branch in our system. nor POTUS. It is CONGRESS. Of which the Senate is co-equal part.

                      Sal Sar

                    2. Anonymous (sal sar), you’re just moving the goalposts here.

                      You claimed the senate has the power to determine whether something is constitutional. That is patently false.

                      Marbury vs. Madison established that the court is the only arbiter of whether a law is constitutional or not. When legislators pass a law and they claim it is constitutional the court is required to review it if is challenged.

                      Your claim is centered on the erroneous assumption that the all the” senate has to say is that this is not constitutional and proceed to not hold trial”. The senate cannot make that claim because any such claim will be immediately challenged and that’s where the Supreme Court comes in.

                      You’re really confusing yourself by conflating two disparate arguments.

                    3. Sal ” claimed the senate has the power to determine whether something is constitutional. That is patently false.”

                      You better read what he said again and then read about the separation of powers. Then look at the action the Senate is taking.

          2. “Impeachment is a two step process that the constitution REQUIRES the senate to decide whether to convict or acquit.”

            Where does the Constitution say that? It doesn’t. You are creating law where none exists.

            1. S. Meyers, “ Impeachment is a two step process that the constitution REQUIRES the senate to decide whether to convict or acquit.”

              Where does the Constitution say that? It doesn’t. You are creating law where none exists.”

              “ Article I, Section 2, Clause 5 grants the sole power of impeachment to the House of Representatives; Article I, Section 3, Clause 6 assigns the Senate sole responsibility to try impeachments; Article I, Section 3, Clause 7 provides that the sanctions for an impeached and convicted individual are limited to removal from …”

              https://constitution.congress.gov/browse/essay/artI_S2_C5_1_1/

              Meyers, see for yourself.

              1. Since when does the word “assigns” mean the same thing as “REQUIRES” (requires is your word)?

        2. S. Meyers, “ If you want the ‘and’ then (if they had the power and who would want to give them such power) Hillary could have been impeached as a private citizen just to prevent her from running.”

          They DO have the power. The founders gave them that power. The distinction is that in order to impeach the offenses must be egregious enough to warrant them. Hillary didn’t commit such offenses. She just violated a department policy. That’s hardly reason to impeach.

          Trump was not a private citizen when he was impeached. That’s the basic point. Whether he’s a private citizen or not is moot. He still has to be held to account. Otherwise any president can bedeemed above the law.

          1. “Hillary didn’t commit such offenses.”

            This perfectly demonstrates you are basing your opinion of the law on how you feel, not what the law says.

            1. S. Meyers, “ Hillary didn’t commit such offenses.”

              This perfectly demonstrates you are basing your opinion of the law on how you feel, not what the law says.”

              You didn’t post the impeachable offenses she committed. What are they? Justify your claims.

              1. The discussion was not about Hillary being guilty. You have no understanding of the discussion that is taking place. You need to learn to read sentence by sentence and then start again from the top.

                1. Anonymous the Stupid has returned. You too don’t know the context of the discussion. Hillary was used as a substitute for Trump to manage the blind bias. But, you are too Stupid to realize that.

                  Those that can comprehend what they read are laughing at Anonymous the Stupid.

  10. Thank you, Professor Turley, for bringing us the “open letter” and your reasoned response. I fully agree with your interpretation. And, apart from the legal issues presented, I do think that an impeachment trial runs counter to President Biden’s calls for unity. There is a striking incongruity between his words and his actions (or lack thereof).

  11. Serious question.. How was Alcee Hastings able to become a MOC after his impeachment and conviction as a USDC judge? Was it due to the disqualification language?

  12. My view is that Trump was impeached while he was still in office, and thus needs to be tried. I think the situation would be different if a president or other official was impeached after they left office. But in that case I would still probably say it is allowed. The constitution does not say that impeachment is invalid after resignation or the term ends. To read such a strong prohibition against impeaching an ex-official from a nit picky textual analysis is not convincing.

    1. MollyG, that’s a good point. To a constitutionalist who insists that it must be interpreted as narrowly as possible means that the absence of a restriction does not mean it is not permitted. It must specifically say so. And as you noted Trump was impeached while in office. Just because he left office before the trial doesn’t mean the process stops there. The senate still has to do its part.

      You wanna know the most ironic part of all this? Republicans who challenged the results of the election are the ones who insisted that the process needs to play out even after the election results were certified. But they those same folks now insist the process is moot because he’s no longer in office. Democrats were right to impeach him before his term ended. Now as republicans loudly insisted, the procession must be followed.

      Turley is just being wishy washy about this because he can’t let go of the need to follow the constitution to its definitive literal words because “the president”. Strangely every former president still holds the title of president after they leave office. People still refer former presidents as president as a title earned. The only distinction is that they are no longer in power. The correct address to such an individual is “former president” but often they are still addressed as “president”. So of Turley insists on splitting hairs and minutiae trump is still “president trump”. His own supporters would still address him as such.

      1. The literal words of the Constitution must be followed because otherwise there is no Constitution. What is wrong with you people?

        1. I don’t know. Maybe trying to converse with one dimensional thinking that you’ve exhibited while thinking you’re able to grasp multiple ideas in the Constitution concurrently?

          Turley himself in his post is highlighting those mulitple ideas in his blog post but is editorially trying to push piece his way through giving credence to one while ignoring the other (while equivocating on his own past position).

          Elvis Bug

        2. “The constitution does not say that impeachment is invalid after resignation or the term ends.”

          One should not impute the Constitution permits things not written in the Constitution.

    2. To read such a strong prohibition against impeaching an ex-official from a nit picky textual analysis is not convincing.

      Yeah, that nit picky text is the only thing standing between you and the sinful nature of those with the power to destroy your life, liberty and property. The words and/or might seem irrelevant to you, but they are there for very specific reasons.

      1. The words are not irrelevant, but I do not think it is correct to read an immunity to impeachment for ex-presidents into the constitution by using such fine textual analysis. A plain reading would say that the constitution does not prohibit it, and Congress has the sole power of impeachment, so it is up to Congress to decide if an ex-president can be tried after they leave office.

        1. Judgement 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, Judgement and Punishment, according to Law.

          It does not say removal from Office, or disqualification… President Trump is no longer in office, which means an impeachment trial cannot satisfy both requirements.

          1. You are making my point. I read that to mean that there is no other penalty for impeachment other then removal from office and disqualification. That is what is clearly says. You are reading the choice of one word to imply an immunity for ex-officials from impeachment trials. If “or” was there instead, it would muck up the meaning even more because then one could argue that Congress may only impose one of the penalties.

            One should not read major immunities, privileges, or powers into the Constitution based on extrapolation from detailed textual analysis.

            1. Any to show that I am not a hypocrite, I am a supporter of a woman’s right to choose, but I do not believe, based on what the Constitution says, that abortion is a constitutional right and thus I believe that Roe was wrongly decided.

              1. The Congress could have and still could pass a law to make abortion a right in federal law. At any time before or since ROE.

                They don’t want to try, because they don’t need to do so. And they fear submitting it to a vote. They have left the heavy work of social engineering to SCOTUS.

                This is the vaunted “democratic process” which in America is more sleight of hand than people realize.
                Specifically, due to Marbury v Madison and the judge created law of “judicial review,” SCOTUS is a judicial tyranny that holds real power over the other 2 branches

                and the BILLIONAIRES’ have them completely in hand for a long time now. Them and us too.

                Sal Sar

          2. Olly, you must not understand how English works. The sentence is stating two options. “ Judgement 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, Judgement and Punishment, according to Law.”

            Notice that it’s not written as “…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:…”

            The distinction you miss is the comma after “…removal from office(,) and disqualification…”. It’s two options the senate can choose. If there was no (,) then removal would also include disqualification.

            “ A comma (,) signifies a short pause in a sentence. It can also divide clauses (“parts of a sentence”) or items in a list. And, it is often used to create division or to improve the clarity of a sentence.”

  13. This post is the kind of scholarly article I prefer. Let’s have more like it. I think there certainly needs to be a Constitutional amendment to resolve these different interpretations. The framers certainly could have spelled out their intentions more clearly! I understand your concern about retroactive impeachments to disqualify potential candidates. Perhaps then there ought to be a statute of limitations added to the Impeachment clause, say 6 months. But even in its absence, the longer the House waits to impeach a former President, the more obvious it is political as opposed to dialogic. And if the Impeachment is simply a pretext to disqualify a likely candidate for office, then it will be very unpopular politically and could backfire against the proponent party. I think it is unlikely that a party will try to impeach a private citizen long after he has left office as opposed to impeaching him on the heels of his leaving office either at the end of his term or upon his resignation.

  14. Turley as expected is gyrating wildly to justify his convoluted reasoning. He cites a very narrow reading of the constitution despite also citing his own belief that it is allowed in his 1999 view.

    He cites Nixon resigning and avoiding impeachment, but neglected to mention that he was pardoned by Ford. If he wasn’t pardoned Nixon would still have been impeached. The only thing that kept that from happening was his pardon.

    Turley admits he’s fixated on the term “the president”. But he forgets that the senate and the house have “sole power” to make the rules when it comes to how they go about doing business.

    Congress can hold a private citizen in contempt. It can also try Trump for his impeachable offenses after he leaves office. Just like his example that a president can just quit and avoid accountability at the last minute meaning he cannot be held accountable. Trump not being in office anymore doesn’t free him from accountability the same way a private citizen committing a crime in one state because he’s a citizen of that state is not accountable any more because that citizen becomes a citizen of another state. That citizen can still be charged and convicted in absentia. Trump’s situation is no different. Turley is just hand wringing over minutiae that is pointless at best. He supported the view in 1999. His own scholarly colleagues are calling him a blatant hypocrite and rightly so.

    1. Actually, what prevented Nixon from being impeached was that he resigned. Ford wasn’t able to pardon Nixon until Ford was president. Nixon’s resignation meant that impeachment wouldn’t have removed him from office since he already left.

  15. Money Shot from the “Scholars”:
    “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.”
    *************************************
    Translation: This isn’t legal language, it’s precatory language. As in we really, really, really wish it to be true. No legal precedent mind you except some ancient law from the country we overthrew to become free and some history JT has described ad boredeum by now. Of course, they reach the opposite conclusion. Imagine that, radical law professors reach radical conclusions! Stop the presses!

    (…)

    Second Money Shot from the “Scholars”:

    “More broadly, a singular concern of the Framers in devising our constitutional system was the
    danger of a power-seeking populist of the type they referred to as a “demagogue” rising to the
    highest office and overthrowing republican government. The Framers further understood that the
    source of such a person’s power does not expire if he or she is expelled from office; so long as
    such a person retains the loyalty of his or her supporters, he or she might return to power.”
    ******************************

    Translation: Trump scares us; regular people scare us; a government by, for and of the people scares us. Seventy-four (love that number, read about the British 74s) million people who don’t think like us, petrifies us! So let’s decapitate the movement. Not much law there either just elitist fear of the people and more dreamland about the Left as guardian of democracy. Hah!

    Such is the state of the legal academe: pushing a government by, for and of themselves.

    1. “So let’s decapitate the movement.”

      That’s exactly right.

      They started with a desire: Ban Trump from politics, and thwart the will of 74 million citizens.

      Then they concocted an “argument” to satisfy that desire.

      That’s not scholarship. It’s rationalization.

      1. Curious when you guys are going to realize leaning on the “…will of 74 million citizens” just emphasizes that trump has never won a popular vote?

        Elvis Bug

      2. It’s entirely possible, if not likely, that the best policies that Trump supported, will actually be advanced more effectively now that he is out of office.

        People need to zero in on policies and not personalities. The problem is of course, that personality sells, and policy is boring to most folks.

        However. other salesmen are sure to emerge.

        Embrace the possibility that Trump can sail off into the sunset and we will be better off.
        Think of him like a coach. The next coach may not be as flashy but he may be more effective.

        I recommend not wasting much energy on defending Trump. He has got plenty of resources to defend himself.

        Sal Sar

  16. First quick thought before jumping in to brave your equivocation on your past position, Jon…

    I think you have to square the circle around your thoughts on whether there are actual differences between physically being in office and the ‘potential’ of being in office…

    I mean, in a divide and conquer, minimalistic way it’s easy to split the two in different camps but that, clearly and unreservedly, misses the essence of the issue.

    Since, as a professor, you’re clearly adept at sending your students back to boil down their themes in your classes it’s kind of like physician (or lawyer) heal thyself first.

    Elvis Bug

    1. Did you actually read the letter and Professor Turley’s response. No offense intended here. I’m just curious.

      1. Yes. As you can see I’ve addressed a specific point in Turley’s response at the expense of addressing several points from it. How did you miss that?

        Elvis Bug

  17. Again, the impeachments of Trump are humbug. There was no misconduct in either circumstance. The object is to define as misconduct taking stances at a variance with the modal preference in the professional-managerial class (the political elite especially). What we’re learning is that our managerial stratum is thickly populated with garbage people who lie to themselves and others with abandon. Professor, they’re all around you.

  18. The Dims want an impeachment to stave off a movement. It won’t happen regardless of the vote of the feckless Republicons. We’re past the Rubicon. Welcome to 1858 and see our “House Divided.” No statesman to be found, so we’ll have to forge some in fire.

    1. I’m ordinarily a Sundance skeptic, but his interpretation of the life and career of AM McConnell is worth reading and (to my mind) persuasive. Now, the question is, why would the Senate Republican caucus install such a crooked character as their leader?

      You have a floor leader and whip for each caucus in each chamber. All of them are people whose work history screams “not suitable”. You expect that of the Democrats. Why is it that the Republicans, who have an ample population of legislators who have done and could be doing other things with their lives, put out front four men who have biographies similar to those of Democratic legislators? It’s not as if Messrs. McCarthy and McConnell ever said any thing impressive.

  19. The hate Trump mantra must be maintained. People did not vote for Biden, they voted against Trump. The democrats can’t lose their foil because higher taxes, higher energy prices, and now calls for censorship would not be winning issues on their own.

    1. Tony, I like your thinking! Remember that Biden did not really campaign on much of a platform. In fact, he campaigned as an alternative to Trump.

      1. Except it’s a non thinking response. is it not clear that Biden’s platform is to actually take Covid seriously (1), stimulate the failed economy (2) and shift toward an economy driven by sustainable energy jobs? Top line.

        Beneath that domestic focus Biden’s foreign policy platform is to reinstitute global alliances absolutely lizard f^&ked in the dirt by Trump’s clueless approach?

        Wondering if we need to break out the coloring books? Biden’s effort at inclusion rather than exclusion could certainly find room for that to help you guys along.

        Elvis Bug

        1. I am expecting my silver stocks to go up. That’s a positive.

          Also, the shutdown of new licensing of oil operations, will make the established players that much more profitable. So both my “new energy” and my “old energy” portfolio are both looking up

          You know, a big stimulus for new “green infrastructure” will probably lead to a net increase in co2 production due to more mining of necessary ores, industrial production of new industrial components, and use of fossil fuels to power these operations and transport the components to their new emplacements, too.

          Some of this is a phenomenon called “green paradox” but nobody bothers with such ideas in “politics”

          https://en.wikipedia.org/wiki/Green_paradox

          Sal Sar

          PS WITH NEAR TOTAL CONTROL OVER MASS MEDIA, GLOBAL CAPITAL WILL SHUT THAT UP IF ANYBODY GETS WHIFF OF IT, SO NO WORRIES!

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