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. My question is: The House conducts the investigation and then the Senate holds the trial. To hold that Trial, the House must send over the results of an investigation which they did not conduct. So what supporting documents will they possibly be able to present?

    1. So what supporting documents will they possibly be able to present?

      Good question. This may be the first Senate impeachment trial based solely on truth, not facts.

  2. “A private citizen being called to the Senate to be tried for removal from an office that he does not hold.”
    Nope.
    Rump is being called to the Senate to defend his ability to “to hold and enjoy any Office of honor, Trust or Profit under the United States.” If he does not succeed, Rump loses his pension. I am nonplussed why anyone – much less a Constitutional scholar – cannot understand a concept so simple.

    1. That is because you are retarded and probably should not be allowed outside without a helmet and adult supervision.

    2. Do you think that President Trump cares about a pension? He donated his salary every year he was in office. He doesn’t need a pension.

    3. Not receiving his pension? Wouldn’t that be a shame for the recipients he plans to donate it to.

      Let’s apply your logic to Ho Xiden, and democrat logic for impeachment #1 whereas withholding funds allocated to a foreign country (Ukraine in this case) and remove Resident Asterisk Xiden, before the feeble old man accidentally drops the nuclear football in his oatmeal.

    4. With your name calling you have rendered coment vindictive and not worth reading. But I digress. This whole impeachment is nothing more than revenge at the hands of one party and a few worthless Republican law makers in their lust for power.
      When President Trump’s legal team presents it’s defense, the hypocrisy will be put on full display, and calls for other officials to be impeached, to include our Vice President, for their actual incitement of rioting and violence during the George Floyd riots, will not be avoided. All in all, this act of revenge will only infuriate millions across the country further dividing us, and ensures that the Constitution is further watered down for the controlling regime (appropriate term for the banana republic we have become) to disregard. This will never end. If they can do this to former Presidents, think of what they can do to you and I. I weep for our country as the die as been cast and we will not be able to alter the the path we are on that leads to our demise. Lincoln and the Founders would be ashamed of what we have become.

    5. The prerequisite is Removal from Office, and once that remedy is accomplished, then optionally disqualification from another office.
      That’s how. It is a concept so simple you should be able to understand it.

    6. Incorrect. The additional penalty of holding public office is not separable from the power of removal.

      No removal, no disqualification.

  3. I tend to agree with the gist of your presentations, but you make two serious mistakes.. One: Pense misrepresented what Prof Eastman, acting on Trumpt’s behalf, recommended, and I believe for devious reasons. Two: you probably need to read the Dr Peter Navarro’s fine Navarro Report. The 2020 Election was awash in voter fraud, election and ballot fraud. You have evidently not done a careful investigation or you would not be taking the position you do. You owe it to your readers and students to do so. Otherwise, you are effectively calling many fine people dishones and corrupt.

    1. Everyone, including people I generally respect, is trying hard to whitewash, sweep under the rug, and intensely ignore what is obvious and provable to anyone.
      It is an open secret that the election was fraudulent accomplished, but in the pursuit of political expediency, and to not be painted as a fringe pundit, most professional opinion makers and politicians are going with the lie that the election was legitimate enough to be legally accepted.
      The strange process we have on elections is such that even if you could prove beyond a reasonable doubt that it was accomplished by sheer fraud and manipulation, it makes no difference to legal status of the holder of that office.
      Big tech and the newsmedia have so effectively prepared the received wisdom to be that Biden won fairly, that anyone opposing it is looked upon as a conspiracy kook, all the evidence be damned.
      http://www.HereIsTheEvidence.com

  4. I would also question whether the actions of one Congress would survive, or should, the change of Senators to a new Congress. You passed the Impeachment in one session then waited, after the term of that Congress expired, to carry it to a new, favorable Dem Senate. It would seem that this would violate procedures of the body.

      1. Yeah, wow, and now the delegations from Michigan, Pennsylvania, Arizona, Nevada, Georgia, and Wisconsin are all illegitimate!

        Far out man!

    1. Wait for it. Very shortly, Friday will climb onto his Advise and Consent soapbox to profess that McConnell did exactly the same thing, but to wait for a favorable Executive.

      Tick. Tick. Tick.

  5. The Democrats should be careful what they wish for. If Trump can be brought to trial can Obama be tried as well for executing US citizens via drone strikes without due process

    And there is a third question that needs to be addressed. According to the FBI, this assault was in the planning stages before Trump uttered a word.

    1. OR, the Repubs take back the House and Senate in 2022, install Trump as Speaker (doesn’t have to be a mamber of the House), impeach Xiden & Harris, Trump becomes Pres. The Dems have set the impeachment bar so low that it would be simple to impeach ANY President moving forward.

    2. You assume that democrats are mentally capable of thinking of the unintended consequences of their actions. They clearly do not have that ability.

      1. You assume that democrats are mentally capable of thinking of the unintended consequences of their actions. They clearly do not have that ability.

        Democrats (and Republicans too) are killing middle class Americans.

        According to a study published in 2019, the number one cause of bankruptcies is medical debt post-ACA.

        https://www.nasdaq.com/articles/medical-bankruptcy-is-killing-the-american-middle-class-2019-02-14

        When it comes to bankruptcy, the study cited court records of bankruptcy filers from 2013 to 2016, with the end result showing that 66.5 percent were tied to medical issues. In other words, they couldn’t pay their medical bills, either because they were too expensive to begin with, or they had to take time off of work and were not getting paid.

        The research also noted that 58.5 percent of bankruptcies were caused specifically by medical bills, while 44.3 percent were caused in part by income loss due to illness.

        The fact that 530,000 families are resorting to bankruptcy each year because of medical bills is not likely in the national interest—and it is a problem that has persisted long before and since the Affordable Care Act.

        Indeed, “Despite gains in coverage and access to care from the ACA, our findings suggest that it did not change the proportion of bankruptcies with medical causes,” the AJPH study noted.

        See:

        Himmelstein, D., et. al, Medical Bankruptcy: Still Common Despite the Affordable Care Act, American Journal of Public Health (AJPH) March 2019, Vol 109, No. 3

        1. “According to a study published in 2019, the number one cause of bankruptcies is medical debt post-ACA. “

          Estovir, this is pure bull. The first time I saw this claim made by Himmelstein was his first article written with his wife. I read that article years ago and it has since been debunked. I won’t bother with this present one.

          The past articles findings were based on telephone interviews. My guess is he did a repeat in the same fashion. He could have gone to the bankruptcy courts and looked at the files open to the public finding only a very small number of bankruptcies due to medical bankruptcy of consequence.

          If one had $1,000 of medical bills and went bankrupt, it was considered due to bankruptcy. In other words that person could have been one of the richest in the US that suddenly screwed up big time going bankrupt despite the fact that he could still have a homestead exception on a $50 million dollar home that cannot be touched.

          Gamblers, drug addicts etc. that went bankrupt were considered medical bankruptcies. He didn’t consider how much a person earned. That article was total bull as the present one likely is as well. I think the other article was published in a major medical journal and it could have been NEJM or Jama. One has to wonder about some of the stuff published in the scientific world today.

          1. It’s all true

            In Virginia, the 2 largest hospital systems are state run and the biggest offenders at pushing patients into bankruptcies.

            UVA Has Ruined Us’: Health System Sues Thousands Of Patients, Seizing Paychecks And Claiming Homes

            Over six years, the state institution filed 36,000 lawsuits against patients seeking a total of more than $106 million in unpaid bills, a KHN analysis finds.
            https://khn.org/news/uva-health-system-sues-patients-virginia-courts-garnishment-liens-bankruptcy/

            Next time you get a hospital or clinic bill, ask them to provide you their costs for services vs what they billed third party payers versus how much they wrote off after receiving payment from TPP versus what you are left paying. Good luck with getting a response from them. Trump was supposed to address this but it went no where

            Medicine today is a Ponzi scheme. As if hospitals are reducing their fees for service by physicians for virtual appointments instead of traditional face to face…..As if….

            1. That’s less than $3,000 per lawsuit. I find that hard to believe.

              Next time you get a hospital or clinic bill, ask them to provide you their costs for services vs what they billed third party payers versus how much they wrote off after receiving payment from TPP versus what you are left paying. Good luck with getting a response from them.

              Agree 100%. Your debt to the hospital is a matter of quantum meruit, and the amount they charge others is highly probative.

            2. Estovir, this is the claim that was made. “According to a study published in 2019, the number one cause of bankruptcies is medical debt post-ACA.” I assume they found a similar number of bankruptcies as they did last time, over 50%. Hogwash. When I checked years ago based on actual case reviewal the number was in the vicinity of 3%.

              All the other stuff you are talking about has nothing to do with the claim under discussion. If you wish to state that everyone that went bankrupt and had a medical bill over $1,000 went bankrupt because of medical bills, do so but that is ridiculous.

              I am not saying our healthcare policy is good. Obamacare is terrible and made things worse. We permit a lot of abuse but most of the problems have good solutions available.

              You deal with statistics all the time so you know better than to deal with telephone surveys instead of the actual data. Most doctors have little or no control over their fees today. Medical care hasn’t been in a real free market since WW2 and every time the government tinkered costs got worse. If you have suggestions I would like to hear and discuss them.

              1. Too long to debate but in essence: ordering wasteful diagnostic tests vs returning to basic medicine viz a viz physician – patient relationship sans voyeurs

                Everything a physician needs to know is found in the patient encounter. The patient tells the story. All the physician needs to do is see, listen, touch aka a thorough history and physical. Diagnostic tools are confirmatory.

                This is an excellent book.

                Every Patient Tells a Story: MEDICAL MYSTERIES AND THE ART OF DIAGNOSIS
                By LISA SANDERS, MD
                https://www.penguinrandomhouse.com/books/160407/every-patient-tells-a-story-by-lisa-sanders-md/

                1. Estovir, we do not disagree that there is significant pathology in our healthcare system. The worst of it was created by government action because even where government needed to intervene government did it badly. They could have utilized free market principles to correct a lot of the dysfunction and made sure the laws weren’t favoring everyone but the patient.

                  My disagreement with you was that you cited Himmelstein’s debunked ideas that most of the bankruptcy filings were caused by medical costs. It is totally untrue and has been proven untrue by those that previously did such investigations utilizing the court records rather than telephone interviews along with crazy and misleading criteria. I remember studies that demonstrated such bankruptcies were at the ~3% level (give or take a small amount based on criteria being utilized.) That is quite far off from the >50%. Another error frequently made, having nothing to do with the bankruptcy article but combined with bankruptcy in the healthcare debate was the competitively low administration costs of Medicare when compared with the private market. That was debunked by Mark Litow many years ago.

                  We were losing the diagnostic edge of a generation of very well trained physicians as our reliance on technology grew. That technology is powerful and a life saver but it doesn’t yet replace the physician though our government thinks it has to a great degree for a long time. I think one could see that in the correspondence from Medicare to its physicians when it changed the greeting to “Dear provider” or something of that nature. It was marginalizing the physician degree and placing all providers at the same level. We see that in the hospital when a patient can’t tell the difference between a nurse or LPN. We see that as well when the patient doesn’t see the difference between a physician extender and an M.D.

                  The history is indeed important and diagnostic tests should be confirmatory but not infrequently the diagnostic test leads to the first suspicion of an occult disease. The importance of physical examination still exists but has been diminished since echo’s and imaging are more accurate than physician eyes, ears, touch and smell. I would not want anyone to get the idea that the expertise of the physician is all that is necessary for the diagnosis.

                  We will not return to basic medicine because the government is using physicians as unpaid involuntary research tools and would like to see the art of medicine disappear. Government has been concentrating on consolidation where the physician is no longer independent. This is making a lot of people very rich in the healthcare industry but the only one’s that actually treat the patient are the physicians and nurses.

                  The late Uwe Reinhardt had opinions mostly opposite to mine but in many ways was a realist. He wrote an article in the NYTimes about how wrong it was to go after the physician who accounts for only a small portion of the bill but provides almost all the care. I thought that was one of his best pieces of work for the layman.

                  As a final note, too many people believe healthcare policy far more difficult than it need be.

      2. Democrats do not have impulse control.

        Their heads know they shoudl not do it.

        But they cannot help themselves

    3. Obama the magic black Jesus only incinerated an American teenage Muslim. So that does not bother DEMONKRAUTZ at all; they are OK with it.

      Further, the DOJ had all the goods on felonious torturers and murderers that worked under Dick Cheney in the military and in the CIA. Then the magic Jesus Obama woke up one day and unilaterally decided to cease all charges and let everyone including Dick Cheney walk free.

      Another reason DEMONKRAUTZ love Obama to death!

      1. that worked under Dick Cheney

        The only people who ‘worked under Dick Cheney’ were his office and household staff. In fiscal year 2004, these were 25 in number.

  6. This is all irrelevant. The current administration and the Congress were illegally elected. They know it. You know it. I know it. The whole world knows it. And they know that we all know…but the gaslighting just ramped up to full on MAX pressure. its too funny if it wasn’t so sad. We are watching a movie.
    For the first time in the history of the USA our elected officials have to be protected from the PEOPLE. outside of a few relatively new congress critters, the rest can not walk down a street, without at a minimum being publicly shamed.
    Xiden will NEVER be able to hold a public event as the amount of protesters will out number anyone that shows up for his event. Even if the protestors are kept a mile away.
    Heels Up Harris likewise. The women couldn’t even get enough support to get on the first ballot of Dem primary. Nobody wants or respects her. Nobody.
    The only people that will be around Xiden in any way are enemies of America and its Constitution and People. That includes the MSM. Most of those famous TV Clowns In America can’t walk down a street.
    And of course, no one the planet is more ecstatic of Xiden than the CCP. American propaganda won’t show you there rejoicing of the theft. They sadly believe that America is DC….they have no idea whats coming.

    1. “This is all irrelevant. The current administration and the Congress were illegally elected.”

      It’s over. Get a grip and move on.

      Let’s tighten things up (and fix what’s broken) before the next election. We need to do all we can to ensure the integrity of our election process.

      Crazy inflammatory rhetoric isn’t helpful — and in point of fact? It’s harmful.

      1. Sadly we can’t ‘tighten things up’ if there is no acknowledged need to do so. Denial by the opposing side can keep things as they are because without being able to show the proof in a fair court (since the court of public opinion is shaped by people who are far from honest) we have no standing.
        Our only shot at getting things out into the light of a Democrat Day, is, sadly the last trial left open to We the People.

      2. Anonymous the Stupid is back insulting people and being dismissive towards them. This is his major contribution to this blog.

        Anonymous the Stupid did you ever hear of Lysander Spooner (that is the alias you responded to). Lysander was somewhat on your side because he was a libertarian of the left (also a bit of an anarchist). I figured I would throw that in. But being on the left side of one with a libertarian persuasion doesn’t make him a fascist like you are. Quite the opposite. Does all that confuse you?

        Don’t worry your pretty little head over those things because we all know your excuse. You are Anonymous the Stupid. I figured I would add a bit of content to an otherwise dumb reply.

  7. Article I, 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.”

    It seems to me that there’s nothing to say judgement can’t be less than removal from Office, so just disqualification would be compatible with that clause, no?

    1. It seems to me that there’s nothing to say judgement can’t be less than removal from Office, so just disqualification would be compatible with that clause, no?

      Then you’re not paying attention. Elsewhere, the Constitution says that removal from office is a mandatory punishment, which means that former officials aren’t subject to conviction by the Senate.

  8. There is a grievous typo in the middle of the reasoning. When Turley says “condemned”, he meant to say “empowered”. Our country barely survived a violent attack incited and allowed to continue by the disgruntled loser of the presidential election. Trump’s response was easily predictable by his actions that led to his first impeachment trial. Turley has excused and protected Trump’s actions. That is his choice and his decision. It’s a free country but by doing so, he has contributed to the weakening of our constitutional system of government. Many Americans now know that a violent attack on one of the 3 branches of government is OK—after all Turley is providing the constitutional support for that ludicrous proposition. There is a reason the constitution includes the penalty of prohibition of holding office—and its not because Madison and Hamilton and company trusted popular elections or thought that demagogues could not happen here. I do not know why Turley supports the repeated attacks on our constitution and system of government by Trump. But now really is a time when all good men and women should be taking stock of how close we came to failure 15 days ago and re-commits to constitutional safeguards and supporting checks and balances and to stand up for peaceful transfer of power. I am very sorry that Turley’s support of Trump has led him to this dark and dangerous place.

    1. Why not simply have the local district atty indict Trump on a criminal charge and let due process take its course ? I suspect the reason is Trumps speech did not legally rise to the level of incitement and they want to keep the trial in the political arena.

    2. Our country barely survived a violent attack incited and allowed to continue by the disgruntled loser of the presidential election.

      Haha. Hardly.

    3. I do not know why Turley supports the repeated attacks on our constitution and system of government by Trump.

      Trump was far more fastidious about adhering to Constitutional norms than any other President in my lifetime.

  9. Saying Mr. Trump incited violence is like saying the NRA incites shootings. The incitement occurred in the wee hours of the morning in the several states where the most blatant voting fraud and Biden ballot additions occurred. Those people who marched to the Capitol on January 6 didn’t need Mr. Trump to lead them, they wanted to redress their grievances for such an obvious dirty election. And an honest investigation by the FBI (if it can ever be possible again) would show that most of those who stormed the Capitol were plants from the left-wing anarchists.

    And none of the double talk about how legal an impeachment is, will restore the integrity of the 2020 election. That’s the first issue that needs to be resolved. But like lazy politicians and intellectuals they don’t like to do any heavy lifting. Just try to impress their colleagues and the unwashed masses.

  10. If someone stole your car and the police came to talk to you, would you be alright with; “well it’s over now, the person with the car has already put in their kids and their own air fragrance.” Very few in this country know what to do when a wrong has been done. Say what you will about the morals or characteristics of Mr. Trump, but when it comes to fixing wrongs, his compass heading is true the course.

    Generally I enjoy your scholarly wisdom Mr. Turley, but much of the time it seems if I want to find you I watch the leaves to see which way the wind blew and low and behold there you are.

  11. How can Trump be convicted of an impeachable offense when there is no trial and is now a private citizen? The part about Roberts not presiding seems to show that. A clear reading of the text is that you impeach someone, convict them and then you have 2 choices remove from office and remove from office and disqualify. There is no 3rd choice! Not only that, why is everyone treating this Stalinist show trail of a former political opponent as something reasonable and normal?

    This has never been done before. we’ve had 4 impeachments and 2 have been against trump by the tiniest of margins. The last one was just Pelosi writing an article on the back of a napkin and riming it through with 2 hours of debate. . this is incredible. what’s next? packing the court? Expelling republicans who don’t agree with the “party line”? People should be made as hades over this injustice.

    1. Why would they bother to pack the court? Roberts is compromised, and two of Trump’s picks seemed to think that illegitimate State elections weren’t a Constitutional matter and States don’t have Constitutional standing. YGBSM.

      The Constitution is irrelevant now. Welcome to 1984.

    2. A clear reading of the text is that you impeach someone, convict them and then you have 2 choices remove from office and remove from office and disqualify.

      Wrong. Removal from office is not a choice. It’s automatic. That’s how we know that a former official can’t be convicted by the Senate.

  12. To my way of thinking the person who needs to be impeached and removed from office here is certainly Nancy Pelosi. She is the one who is denying funds or giving them to the wrong people. I don’t know how long these people can continue to try to punish other people for what they are doing and have no one do anything about it. It is as plain as the nose on my face..

  13. Will the Senate Try & Convict Trump and then remove the President – Biden? How confusing.

    1. Maybe Turley and Dershowitz ought to call out the left wing zealots for stealing the election. Nothing that has ever happened in this nation was that grievous, lets pretend we have a Democratic Republic whilst acting like a 3rd world country with a dictator; They all know the Dems stole it, but they all have their hand in the bounty jar, the Generals, the Courts were scared by ANTIFA, that was their purpose they had never Trumper Roberts in the bag, all ANTIFA and BLM needed to do was scare ONE of Trumps appointees to death, this is why they showed up at Tucker Carlson’s house, at Grahams and McConnel’s house, that is why Schummer threatened the Supreme Court etc. etc. And why their propaganda arm (Media) tied those three to being in Trumps pocket, it was an organized effort. they knew all they needed was ONE VOTE in order to get Biden elected, because they were goin g to steal the election and dare those three to take it away,. This is barbarism, and Turley should call this crap out, but in the ends he is too afraid of the Cancel Culture.

      1. A cogent response and great argument; besides Turley highly reputed commentary well taken; would loke to hear from Mark Levine as well

  14. Impeachment is for “removal” “and barring him from further office”.
    The word “and” means he can be removed from office and banned from future office. They can’t try him now. He is O U T.
    Someone in the House needs to file a motion to redact the Articles. If Pelotsi depends the Article to the Senate then some Senator needs to file a motion to dismiss the Article.
    The leader of the pack, Kamala, should dismiss the Article.

  15. Why have a trial when you know there is zero chance of conviction? What is the point? Pelosi provided the answer already, they do want him to return. So the Democrats rushed a second impeachment with no chance of defense from the President. Are the so afraid they will have to face him again in the future, so they have to make sure he is dead?

    This is about two things: political theater, look what we did to him. Second: trying to bring a no-win situation to the Republicans. One part is if they do not convict, holding those to ridicule and if they do support conviction, facing an angry constituency. It will fail and harden an already hard opinion.

    The Democrats have now made a mockery of two impeachments. I hope the remember that when it comes around and bites them back.

    Regardless of what one thinks of Donald Trump, the man the politician, or the lightening rod, he did not call for an armed insurrection or overthrow of the United States government. His speech was exactly where he failed, he whined when he lost. And that shows him to be what he is, a small man in the end. Instead of letting him choke on his words and history judge him, they have compounded the problem by rushing a poorly designed and executed impeachment. History will judge them too. I suspect it will not be favorable.

    1. To be impeached, one must be the sitting President. If he is impeached through the Senate, then it is discovered he actually won the election, he would still be impeached and not be able to regain his office.

      1. “To be impeached, one must be the sitting President. If he is impeached through the Senate, then it is discovered he actually won the election, he would still be impeached and not be able to regain his office.”

        Actually, if an impeachment were to determine that President Trump actually won, as we know he did, then it also raises the fact that the Senators elected in that same election are ineligible to be voting.

        Face it, we have lived through a coup. This country is forever dead to the world.

    2. This is about two things: political theater, look what we did to him. Second: trying to bring a no-win situation to the Republicans. One part is if they do not convict, holding those to ridicule and if they do support conviction, facing an angry constituency. It will fail and harden an already hard opinion.

      Yes, the “no-win” thing is exactly right. That’s why McConnell needed to do everything possible to keep it from coming to a vote.

      At least Trump’s out of office so that any “no” vote can be explained later as an opinion that a yes vote would have been unconstitutional. That will provide wiggle room when re-election time comes around.

  16. This country is a powder keg and McConnell and Senate Republicans are holding the match. If they allow this charade to continue, it’s going to explode.

  17. Relying on English impeachments such as the Hastings case to support retroactive impeachments in the US seems misguided. English impeachments could result in fines, forfeitures, incarceration or even death. They were in effect an alternative kind of criminal trial. Given this, it mattered little if the person charged was still in office. The US constitution rejected this approach. First, in the operative provision, it refers to removal. Then, it says the penalties consequent to conviction may not extend further than removal, AND disqualification. The purpose and remedy indicate that it is the political risk of continuing tenure in office that is to be countered.

  18. I made the point on another site.
    The Constitution says impeachment is limited to removal from office AND barring future office..
    NOT removal from office OR barring from future office.
    The issue of resigning to avoid impeachment is moot in Trump’s case.
    Trump finished his term.
    There is no argument that he is still under the timeline of his office.
    Since he served out the full tenure, he is not “artificially” not in office and he did nothing to “thwart” an impeachment by resigning, he is well and truly a civilian with no unserved time left for the office of President.

  19. Article II, 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._____
    Article I, 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._____
    The language seems clear to me that Article I, Section 3, Clause 7 limits the action of Impeachment to removal, removal then causes disqualification from further holding any office of honor. The key phrase “shall not extend further than” also includes (AND) in the continuing sentence which is defined “connecting words, clauses, or sentences to be taken jointly”. I see no path of any action that can be taken against President Trump under Article II, Section 4, he holds no office, which is required to enforce Article I Section 3, Clause 7.

    1. Impeachment while out of office is equivalent to a bill of attainder in English law. Trial in the Senate would deny Trump of his constitutional right to a jury trial of his peers

    2. I agree. It also says that he can be tried in a criminal court. If he were convicted in a criminal trial it could subject him to immediate impeachment if he were elected again.

  20. Sal Sar, always dig your responses.

    The green paradox is indeed a paradox — but not a permanent one.

    Elvis Bug

    1. Mining operations may go into overdrive. My rare earth investment is up like 80% in less than a year.

      But they are mostly run by global corporations. I find it interesting that the policies under contemplation will quite possibly drive their profits up strongly —

      and also create “humanitarian problems” in the places where they operate. this discusses “extractivism”

      https://www.independent.co.uk/voices/extinction-rebellion-climate-crisis-bhp-mining-coal-colombia-a9167601.html

      Sal Sar

    2. Here is a very good speech by Jem Bendall. They jabbed at him in that article. I think unfairly. You may have heard of “extinction rebellion.”

      I don’t hold with a lot of what he says, but some. One thing I do agree with, is that he is what’s sometimes called a doomer– believes global warming trends are irreversible and advocates focus on adaptation and believes mitigation efforts often operate at the expense of more critically needed adaptation ones.

      Anyhow this speech is a great insight into how our system of debt created money drives the need for aggressive global economic growth which makes sustainability a very difficult prospect to achieve.

      He looks at a very new possibility: that blockchain based currencies, due to not being debt-created instruments, may act as useful money for people without driving global overproduction and overconsumption.

      https://www.youtube.com/watch?v=j-Opqi-2UgY

      Interesting case study from Uganda about that.

      Another thing I like about Jem is that he has a light and positive tone, without being a purveyor of “hopium”

      Sal Sar

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