Congress, Constitutional Law

“Dead Letter”: Almost Half Of The Senate Votes In Support Of Motion Challenging The Constitutionality Of A Second Trump Trial

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.

151 thoughts on ““Dead Letter”: Almost Half Of The Senate Votes In Support Of Motion Challenging The Constitutionality Of A Second Trump Trial”

  1. Any chance in the next millenium those do nothings will actually work? And now it goes further down hill.

  2. The law often revolves around technicalities. I’ve used them many times to get traffic tickets dismissed.

    That said, let’s be honest about “he’s no longer the President” being a technicality. The offending conduct took place while in Office.
    The Offense was plotting to interfere with the Electoral College Count in the Joint Session, somehow impede Biden getting 270, and then throw the election into the House, Trump winning 26-24. An outcome such as that showed reckless disregard for the 81M voters, and could easily have ignited a leftist insurrection.z

    The House voted an Article of Impeachment while he was in Office.

    The Senate Trial is pursuant to the House Impeachment, and Due Process says it should be completed, even if removal from Office is already moot. Eligibility to run for Federal Office is still on the table in the Articles as a consequence of Impeachment.

    It seems way too expedient in the moment to weaken the checks and balances on a future President who loses an election but doesn’t want to give up Office to the winner. This “unfriendly transition” posits one of the greatest tests of Presidential character — so why remove checks and balances during this transition? To do so invites extra-Constitutional gaming of the system — which is exactly the nature of what Trump was doing.

    1. +10

      So many in the “law and order” party were silent or complicit in this effort, no wonder they just want it to go away.

    2. Pbinca, Hilary Clinton told Joe Biden to not accept the election under any circumstances if Trump won. So should we now expel her from the Senate retroactively. Was Hillary’s encouragement an act of sedition. Was she encouraging an action of sedition against an outcome of a certified election. Hillary and Trump have something in common. They both were calling for an inspection of the vote to make sure the election was legitimate. Hillary was praised for her distrust and Trump is being impeached for his. Pbinca, you sure are correct about selective technicalities.

    3. The Offense was plotting to interfere with the Electoral College Count in the Joint Session, somehow impede Biden getting 270, and then throw the election into the House, Trump winning 26-24. An outcome such as that showed reckless disregard for the 81M voters, and could easily have ignited a leftist insurrection.z

      Democrats have challenged the count multiple times in the last 25 years.

  3. The question of whether convicting an ex-president in an impeachment proceeding is constitutional is for the Supreme court to decide, not Senators. Basic separation of powers issue.

    Senators claiming it’s unconstitutional is just an easy out, obviously

    1. Who has standing? Would an ex-president AFTER a conviction petition the court

      The CJ has already Ruled. He is not presiding, because he can only participate in the Senate trial of the President. Joe Biden. Joe is not the defendant…yet.

  4. One of the most damning aspects of this impeachment – the elephant in the room is the lack of confidence those on the left have in their own claims to have legitimately who the election.

    If as Is claimed – Biden beat Trump is a fair election – then the only way Trump can win in 2024 – assuming he actually runs is if democrats fail miserably.

    If you beleive Trump actually lost a fair election – then you should hope that Trump is the 2024 GOP nominee.

    The fact that the left clearly FEARS Trump. strongly suggests they do not beleive their own claims.

    1. I don’t believe they fear Trump as much as they fear the base of conservatives his presidency built. The border wall is a great metaphor for that base and they foolishly believe that wall will be dismantled merely by impeaching him. What they are actually doing is reinforcing the wall.

    2. John,
      To add to my point, David Marcus penned an excellent piece in The Federalist today:

      Conservatives aren’t supposed to fight. We are supposed to go gently into that dark night of leftist hegemony and just hope our Norman Rockwell prints aren’t confiscated and cancelled. No. David French and Jonah Goldberg can keep doing that for whoever reads them anymore, but conservatives will not. We will keep up Trump’s fight.

      When William F. Buckley annunciated movement conservatism, he said things like “Nominate the most electable conservative” and “Stand athwart history yelling stop!” These were incredibly defensive positions. In retrospect, maybe making George Will’s bow tie the avatar for a conservatism that ceded cultural ground at every turn was a mistake.

      Trump invited the American people to fight back. We can argue over whether he was a carnival clown, but as the examples above show, it was wildly successful. There is no going back. Biden’s cavalcade of leftist wish list executive orders shows exactly where we are. Democrats don’t desire a détente, they desire domination. Over you, over your kids, over your community.

      Unlike Buckley, Trump appeals to working-class and minority voters, and makes an effort to earn their votes. Unlike Buckley, Trump does not simply assume we are losing and trying to slow it down. He wants to win. And, yeah, he lost. He fought, but he lost.

      Now it’s our fight. Now it is our responsibility to save the country. Who’s with me?
      https://thefederalist.com/2021/01/27/donald-trump-fought-for-us-now-its-our-turn/

      1. Buckley was CIA false opposition and planted a lot of bad habits. Including talking in an arrogant and pompous way

        saloth sar

        1. Including talking in an arrogant and pompous way

          🙂 Wait, what? He wore a bow tie and used big words. Isn’t that supposed to mean his ideas were brilliant?

      2. Olly, I think you and “John” missed the part were Trump told numerous rallies this fall that if he lost, he wasn’t coming back there. He held these folks living in rural backwaters in contempt and used them and you – hey, sorry to break it to you – for his own ends, which was flying around in AF1, constant attention, and staying ahead of the banks and DAs. His friends are the guys he told “I just made you a lot of money” when he hit the hi class restaurants after the tax cut. He doesn’t go to diners. He doesn’t vacation in Branson. Your not on his team. You’re his marks.

        1. I have a question about your use of the word contempt. Was Hillery showing Contempt when she used an Amos and Andy accent and said ” we ain’t no ways tired” to a Black audience ?? Did Biden show contempt when he said if we don’t support him over Trump we “ain’t Black “. I wonder if George Wallace another democrat, endorced by the NAACP, would have said that

    3. Your analysis and conclusion are sound, correct, insightful, meaningful and pertinent.

  5. The constitutional issues would only be relevant if the actual impeachment was.

    Faux Impeachment I & II have made it clear that the democratic house views impeachment as little different from a vote of no confidence. That it is a political measure intended to punish a political opponent. That it has nothing to do with “high crimes and misdemeanors”.

    While that is a mistake – it is a political one not a constitutional one. Absent the right to appeal a House impeachment to the courts, there really is no meaning to “high crimes and misdemeanors” beyond what the house of the moment decides.

    Trump will be remembered for being impeached twice. But it is likely the negative historical judgement will fall on the house not Trump.

    They have diminished impeachment to be purely political – and stupidly so. It is not like it is not pretty clear than The Biden’s conduct in Ukraine DEMANDS investigation.

    That said – political impeachment as opposed to any real meaning to “high crimes and misdemeanors” deny’s the congress the ability to bar the person impeached from future public service.

    Barring someone from future office without actually finding a “high crime or misdemeanor” is likely unconstitutional, but more importantly it elevates the congress over the will of the people in elections.

    1. President Trump has only been impeached once. The single article of impeachment was perfected, when it landed in the Senate the evening of January 25. A full 5 days after President Trump became citizen Trump. No longer under the jurisdiction of congressional impeachment actions.

  6. In questions of constitutional law, a person (a President) or body (Congress) who happens to “get it wrong” and lose a case in the Supreme Court (or a lower Federal court) is generally not considered to have committed a criminal act even if the Constitution was violated. All that happens is that the law or directive that was ruled unconstitutional is declared void and unenforceable. I presume that this is at least partly because the meaning of the Constitution is not always clear and unambiguous.

    But if a Congressional action is unambiguously unconstitutional right from the outset, can criminal penalties be applied? And, if so, who would apply them? I am thinking, of course, about the current impeachment effort. It seems virtually beyond doubt that you can only impeach a sitting president, and the Constitution clearly states that the Chief Justice of the Supreme Court is to preside over an impeachment trial. Neither of those conditions apply in this case, not to mention the other procedural irregularities that Turley and others have noted.

    Perhaps Turley can address this issue. It seems unfortunate to me that a nakedly unconstitutional impeachment could go unpunished, except at a later date, via the ballot box. But if the Senate – or some portion thereof – engages in acts that are so egregious that they amount to an abuse of power, can those people be impeached? Can we impeach the impeachers?

    1. WTH? You dislike Sen. Patrick Leahy being the judge of a trial, which before the trial started already voted the defendant guilty?

      I wonder if any of the DEMONKRAUT trolls here would chime in and explain, if the political rolls were reversed, would they be down with the above scenario or would they pound the floor, screaming foul and bloody murder wearing sacks and tossing ashes over their heads?

      Obviously rhetorical Q. The latter is obviously their reaction.

    1. I think the lack of interest in whatever bill is under discussion is because all the Zorro masks look alike.
      Now if the all the Zorros come in on horseback Interest would rise.

  9. Well, now we know for sure: Turley admits he is on the GOP payroll. That explains a lot, including the directions Turley gave them on how to be sure to keep pandering to the Trump disciples: ” 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.” The most-shocking part of this piece is that Turley could be “inspired” by being in the presence of unpatriotic trash like Josh Hawley, Rand Paul and Ted Cruz. I, too, am “inspired” by them: to throw a brick through my television every time I see one of their faces. To further their own political careers, they refuse to tell the disciples that Trump lied about the election being stolen, they refuse to hold him accountable and refuse to redress the invasion of our Capitol by domestic terrorists, all of which feeds into the narrative that Trump was cheated, which is not true AND THEY KNOW IT.

    Turley: do you have any sense of patriotism for America, or is it all about fees, guest appearances, being referred to as a legal “expert” (something I’m seriously beginning to question, based on your recent writings)? You’re even trying to back-pedal statements you made previously that favored a trial after the subject left office. And, BTW: Trump was impeached before he left office, so the issue of removal from office is moot, but not the question of whether he can and should be precluded from ever serving again. Legal scholars all agree on this point, as you did, Turley, before you went on the GOP payroll. So, Rand Paul’s statements last night were intentionally misleading. Did you tell him to say these things to keep the disciples happy and hopeful for a Trump comeback? Haven’t we all suffered enough? Hasn’t the economy taken enough of a hit? Haven’t enough Americans died due to his deceit and incompetence? Hasn’t America been divided enough to suit you?

    Trump incited an insurrection by lying, even before Election Day, that the election was going to be rigged. That’s because polls showed he would lose to Biden, just like he set a record for low approval ratings throughout his troubled tenure in our White House. Despite calls to march on the Capitol to “fight” for him, and Giuliani’s comment about engaging in “combat” and Hawley’s comment that we wouldn’t know about certification of the Electoral College results until after January 6th, Turley thinks Trump should just get a free pass. So what if 5 people died, including a Capitol police officer who was bludgeoned to death? So what if they spread feces and urine in our Capitol, defaced John Lewis’s monument and tore down our American flag and replaced it with a Trump flag?

    Turley says there is no “direct evidence” against Trump. Each member of Congress there on January 6th saw and heard the insurrectionists, they saw and heard Trump’s constant lying about nonexistent election fraud, they smelled the tear gas, and they were ushered into the bunker for their own safety. Despite all of this, and even before the victims’ bodies had assumed rigor mortis, Hawley, et al, were still working for Trump–lodging baseless “objections” to the Electoral College results–trying to invalidate legally-cast votes on the grounds of nothing but the lies of a sociopathic narcissist–which, if it worked, would destroy American democracy. What additional “evidence” is needed? So, your advice to your GOP clients on how to keep the deplorables happy and hopeful for a Trump comeback is to not call witnesses? You, Turley, think that what Trump did is acceptable….or, is it just about the money?

  10. I am glad Biden hired Jen Psaki back. She’s hot. Love her red hair.

    Not as pretty as Kelly Mcwhatever but I still think she’s hot

    Sal sar

      1. She’s not really pretty but I like the red hair and ivory skin. Now, Dana Perino is very pretty, classic nordic type.

        Gosh, did I say that? Delete, delete, folks may think I’m a racist! [quavers, hides under the covers and weeps].

        Jen Psaki reminds me of a girl in my honors chemistry class. we did organic chem too, on the side

        Sal Sar

  11. 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.

    Absent such witnesses, there is no direct evidence of intent by Trump to incite an insurrection.

    Mr. Free Speech Purist Jonathan Turley seems to have a conflict with the President’s exercise of that right. Does the President have the right to challenge the outcome of an election? Does the President have the right to assert what Turley describes as false statements regarding the VP authority? I thought Turley’s position was to not silence speech, but to challenge it with better speech. Challenge it with the law to make clear President Trump’s assertion of VP authority was not necessarily false, but a wrong interpretation of the law. So if the President chooses to challenge the election results, or the certification of the electors, he has every legal right to do so, all the way up to the moment he is to peacefully transition power. In the same vain, President Trump’s supporters have every right to peacefully and patriotically march on the capitol to make their voices heard. Now if evidence exists that show President Trump incited violence similar to how several Democrats did over the summer, then by all means, present it. Then we can expand our list of politicians who should be censured or forced to resign.

    1. Innocent till proven guilty, not :“We want him guilty as it helps our cause. And will not help justice but hinder it with rhetoric. = hate does not lead to equitable justice.

    2. I don’t recall Prof Turley addressing much of anything Trump was speaking about.

      Here’s a Transcript someone put together of Trump’s 1/6/2021 speech.

      ”
      Donald Trump: (16:25)
      Our media is not free. It’s not fair. It suppresses thought. It suppresses speech, and it’s become the enemy of the people. It’s become the enemy of the people. It’s the biggest problem we have in this country. No third world countries would even attempt to do what we caught them doing and you’ll hear about that in just a few minutes. Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer, and we want to be so nice. We want to be so respectful of everybody, including bad people. We’re going to have to fight much harder and Mike Pence is going to have to come through for us. If he doesn’t, that will be a sad day for our country because you’re sworn to uphold our constitution. Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.

      Donald Trump: (18:16)
      We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today we will see whether Republicans stand strong for integrity of our elections, but whether or not they stand strong for our country, our country. Our country has been under siege for a long time, far longer than this four-year period. We’ve set it on a much straighter course, a much … I thought four more years. I thought it would be easy. We created- ”

      The rest is here:

      Damn, the link didn’t get saved… I’ll dig it up later

      1. The fact Turley claims he was criticizing the speech while it was being given seems to be less an analytical approach to how he professes we challenge bad speech and more of an emotional approach to how many on the Left approach silencing speech. He needs to practice what he preaches.

  12. This will forever be a red asterisk by Nancy Pelosi’s name:

    * – Impeached a president twice and failed both times to show anything other than political motivation. Shame.

    1. SP:

      They say Trump will be “stained” by being impeached twice. What’s worse? A prosecutor who gets it wrong twice or an accused who skates because of the dumb, vindictive prosecutor — twice? Gimme “Dumb Prosecutor for 2000. Alex!” These Dims are such pompous pettifoggers. Nobody cares about their childish tiffs with Trump.

    1. Those ABC govt outfits are likely planning some false flag terror events against us citizens like they pulled in OKC, 911, etc., to take away even more of our American freedoms again as they know they can’t get the USC amended for their Commie/Nazi crap that Molly seems to love.

      Look at what they always target…. The 1st, 2nd, 3rd, 4th,etc….

      Notice they never say: It’s obvious to leadership our ABC agency is beyond totally corrupt & needs to be defended & shut down.

      1. JFK told the CIA he planned to dismantle it.

        Shot in the head and died soon after…purely coincidence. And I suppose Oswald’s shot was pure luck? Just ignore the fact that three times, using superb modern rifles, the best US military marksmen failed to replicate Oswald’s shot with a putrid Russian rifle, and that Oswald was a proven failed shooter whom had not recently practiced at a range with suitable long target. Just ignore all that. And just ignore the beauty and simplicity of Jack Ruby just walking right up to Oswald and murdering him, the most infamous criminal in modern American history .

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