In a critical vote at the start of the second Trump impeachment trial, almost half of the Senate voted in favor of a motion by Sen. Rand Paul challenging the constitutionality of an impeachment trial for a former president. The motion was subject to a tabling motion, making this a procedural vote and does not necessarily lock in any member. However, it was the first test of the view of the body on this unresolved question. After spending a good amount of time with all of the Republican senators just before the vote, I was not surprised by the 45-55 vote. Members on both sides of this issue had a good faith and civil exchange on the historical and constitutional basis for such a trial. Figures ranging from President Joe Biden to Sen. Susan Collins (R., Maine) have said that they believe it is clear that there are insufficient votes for conviction and that Donald Trump is likely to be acquitted. Other senators are now calling the trial a “dead letter” or “dead on arrival.“
As before the first Trump Senate trial, I was asked to come and present the historical and constitutional issues facing the Senate with all 50 GOP senators. It is an extraordinary and in many ways an inspiring experience. In such private settings, the senators can have frank and substantive exchanges. I will not discuss what was said by any senator but there was a full range of perspectives and a demonstration of a great depth of knowledge among the members. These senators were struggling with the same issues that many of us have struggled with as scholars for decades. I was impressed by not just their knowledge but their honest efforts to get this right as an institutional matter. There was a diversity of opinions and questions but it was a civil and substantive discussion.
As I have said repeatedly, this is not an easy issue and people of good-faith can disagree. As stated recently with regard to a letter from scholars in favor of the impeachment, I still consider this to be a close question where I have repeatedly reworked the constitutional text and history in my own mind. There is precedent that can be cited on both sides of the issue. Indeed, the only two cases in the United States — Blount and Belknap — would seem to favor different sides of the question. I presented that history and the conflicting positions. One case, Belknap, shows that historically impeachment has been used where removal was not purpose of the trial since the accused was already out of office. English cases like Warren Hastings can also be cited for the proposition, as I have discussed in my prior scholarship. None of these cases involved a former president.
Moreover, there is no question that retroactive trials can have a value in condemning wrongful conduct and also securing disqualification. Over twenty years ago, I wrote a law review article explaining the basis for these cases and I still believe that. 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. Accordingly, I would change little in the widely cited excerpt from my 1999 work on the obvious non-removal purpose demonstrated by the Belknap trial. (I would add discussion of the countervailing textual and prudential issues that favor Blount over Belknap).
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. I still favor a censure motion that could garner bipartisan and bicameral support.
There are however tough textual and logical hurdles that face these senators. I do not envy them and I tried to offer them the best background that I could on the issue. Each must decide if this is constitutionally permissible. That has divided scholars for decades. There are a variety of opinions, though virtually all scholars who have written on this issue have said that it is a very close question. Professor Cass Sunstein sees strong arguments on both sides and agrees that the answer is not clear. However, he believes that the House cannot impeach a former official but the Senate can probably convict one. I believe that the balance of the textual analysis favors the narrower view, but (as I said to the senators) there is ample room for debate.
The second question goes to whether this is a sound constitutional practice. In my view, this impeachment shows that the value of retroactive trials is outweighed by the costs. I will not repeat my earlier arguments on that question. However, those costs are greater with the use of a snap impeachment to bring this case to the Senate without any record from a hearing or witnesses. Again, I have not changed my view of the historical record on retroactive trials or the value of such trials. Like most scholars I did not focus on this issue in earlier writings, but my view has evolved on textual barriers. Yet, while my textual view has tightened in the last 20 years, I continue view impeachments as having an important dialogic value separate from the question of removal. That is why I believe the Senate can remove a president up to the last day for the same reason. These trials play an important role in renouncing abusive or corrupt practices. I would still reject a snap impeachment but, if they have hold a hearing and create a sufficient record for the Senate, the value of such impeachments include the condemnation of conduct and not just the removal itself.
As I discuss in a column today in the Hill, there remain prudential concerns that the senators will have to address as well as the lingering constitutional issues. The procedural vote does indicate that Trump will prevail in the trial and secure a second acquittal. The Senate refused to call witnesses that the House did not call in the first impeachment. Absent such witnesses, there is no direct evidence of intent by Trump to incite an insurrection. Without such a record, a conviction would be exceptionally unlikely.