The Belknap Margin: The Senate Decision Shows Not Much Has Changed Since 1876

When the House moved to impeach President Donald Trump for a second time, I wrote a column on the similarities to the William Belknap impeachment in 1876. The vote of the Senate to continue the trial despite a constitutional challenge over the use of a retroactive trial bore striking resemblance to that earlier decision.  That should be good news for Trump. The Senate declared the trial constitutional and effectively over by its 56-44 vote.

The Belknap was charged with accepting bribes for contracts associated with the Indian territory. The House managers charged that Belknap had “disregarded his duty as Secretary of War, and basely prostituted his high office to his lust for private gain.’” Belknap first raised the jurisdictional argument that impeachment did not extend to former or retired “civil officers.” The Senate voted on this threshold jurisdictional question and reaffirmed that it had jurisdiction over former officers by a vote of thirty-seven to twenty-nine.

The vote fell just five votes short of a majority to dismiss the case as constitutionally improper.  The first vote on this issue in the Trump trial on the motion of Rand Paul resulted in just five votes short of a tie. This vote failed by six votes.

Thus, the constitutionality of retroactive trials remains a highly contested proposition and I expect it will remain so. While many of us have reached conclusions on the question, most scholars add that this remains a close question. It certainly is for me. As I have previously written, I stand by virtually everything that I wrote on the intent behind the Belknap trial and the value of such retroactive condemnations in my 1999 Duke article that was cited in the impeachment trial by the House managers.  Thus, my views of the inherent value of such trials and the application of this theory remain unchanged. Where I have changed is on the ultimate jurisdictional issue. I have written for years on my evolution on constitutional interpretation toward greater textualist and formalism over the last three decades.

What is more important is that not much has changed for the United States Senate. It remains almost divided in half on the issue.

There is of course another similarity with Belknap. He was acquitted. With 44 senators stating that this trial is categorically unconstitutional, it is hard to see how the merits of the trial would change their position. Thus, Trump is likely looking at an acquittal with at least 44 votes.  That could well increase as some senators vote on other issues like the impeachment of a president for reckless rhetoric, as I discussed yesterday in a column.  To pick up a few more votes however will require a substantial improvement in the performance of the defense which seemed casual and unfocused on the first day.

The immediate problem for the House managers will now be addressing how that vote impacts its demand for witnesses. With the outcome all but certain, senators of both parties may not want to draw out the trial with witnesses.

Belknap worked to the advantage of the House managers on the constitutional issue but now works against them on the verdict.  Belknap demonstrates how such threshold votes harden the vote for acquittal. Thus, Trump may have lost the threshold vote and won the ultimate verdict.

399 thoughts on “The Belknap Margin: The Senate Decision Shows Not Much Has Changed Since 1876”

  1. To all. Some believe Wikipedia is not biased. This is what Wikipedia said about censorship and BIAS.

    “(but note that updates without valid and reliable references will be removed)”

    Like Twitter and FB that opens the gates to BIAS confirming the video and all the other items I posted for review in an earlier response. We all know what is happening on Twitter and Facebook. The same happens on the BIASED Wikipedia.

    1. LMAO. Allan can’t provide evidence of his earlier claim, which was that “Almost every politically important entry is off-limits to editing by editors other than those specially appointed for the page,” so he tries to argue that WP is biased because — the HORROR — it requires “valid and reliable references.”

      What kind of references do YOU want, Allan, invalid and unreliable ones?

      You can’t even bring yourself to provide the URL for the page you’re quoting from, coward.

      1. ““Almost every politically important entry is off-limits to editing by editors other than those specially appointed for the page,””

        Let’s dispense with that statement which I can’t absolutely prove without a lot of effort though has been discussed and adequately proven by the sources I previously posted. Let’s not deal with how they store data but how they handle new data in the first place.

        From your source likely a one time pop up to permit Wikipedia to meet the legal requirements in Europe. The discussion is bias and not Anonymous the Stupid BS which is clogging up the sewers on this blog.

        Wikipedia’s warnings include:

        “(but note that updates without valid and reliable references will be removed)”

        This is no different from what is happening at Twitter and Facebook. Bias and Censorship. Anonymous the Stupid has continued to fool himself but no one with a brain is fooled.

        1. “Wikipedia’s warnings include: “(but note that updates without valid and reliable references will be removed)””

          Yep. Now link to the page you copied this from, so we can read the entire sentence, just like I asked earlier. For one example of a more complete quote, see the one I found on one of the few pages that has that notice, which I quoted in my other response to you think morning at 10:42 AM,

          “This is no different from what is happening at Twitter and Facebook.”

          BS, as I already explained in my 10:42 AM response.

          “Anonymous the Stupid has continued to fool himself but no one with a brain is fooled.”

          All of your insults are projection, Allan.

          1. Anonymous the Stupid, there is only one thing that counts. All the rest including your links are the BS you spread over everything.

            “(but note that updates without valid and reliable references will be removed)”

            That phrase means Wikipedia can censor anything they don’t like.

            It’s simple, but the left gave you no response so now you have to sit and stew while you look Stupid.

            1. “That phrase [‘updates without valid and reliable references will be removed’] means Wikipedia can censor anything they don’t like.”

              First, Wikipedia isn’t a person. Editors edit pages, and yes, and editors will remove content that they believe is inconsistent with the rules, and some editors vandalize, and if someone believes that content has been removed inappropriately, they can reintroduce it, and if there’s a continued disagreement, there are processes to resolve the disagreement, preferably through consensus-building discussion. That’s not censorship.

              So you’re either ignorant about the actual processes or you’re purposefully lying.

              Second, there’s nothing wrong with removing content that isn’t backed up by “valid and reliable references.” It’s an encyclopedia, not an opinion page. You’ve yet to answer the question: What kind of references do YOU want, Allan, invalid and unreliable ones?

              “you look Stupid.”

              You keep projecting, Allan.

              1. “First, Wikipedia isn’t a person.”

                Anonymous the Stupid did anyone think it was? Put the words Encyclopedia Britannica in there and see how it feels.

                All your protestations about the evidence are meaningless.

                Wikipedia told you loud and clear that they could censor. Reality tells us they do. Therefore Wikipedia is a biased source. That doesn’t suit your narrative so you keep going down tangents. That tells everyone you are not a credible individual.

                1. So you want to compare it to “Encyclopedia Britannica can censor anything they don’t like”? Yes, the EB editors do that. Do you have a problem with EB editors censoring possible content prior to publishing it, if that content isn’t based on reliable sources?

                  You still can’t bring yourself to answer the question, Allan: What kind of references do YOU want, invalid and unreliable ones?

                  That’s not a tangent. That’s the central issue.

                  1. No, you missed the point Anonymous the Stupid.

                    >>“First, Wikipedia isn’t a person.”

                    >Anonymous the Stupid did anyone think it was?”

                    1. I asked my question first, Allan. After you answer mine, I’ll answer yours.

                      Here it is again: What kind of references do YOU want, invalid and unreliable ones?

                    2. Anonymous the Stupid, by their own actions those that actually make policy decisions have ruined their reputation. If their co-founder walked away because of bias why would anyone be surprised that Wikipedia is biased?

                      Larry Sanger writes:

                      “Neutrality Is Not Objectivity

                      One common error is that neutrality aims at “objectivity.” This is often treated as if it were a synonym of neutrality, but objectivity and neutrality are at odds as concepts and as aims. Objective thinking and writing involves setting aside our personal feelings, assimilating and presenting the evidence rationally, and drawing only those conclusions warranted by the evidence. This is a fine thing, but an objective process of thinking is still a highly personal and fallible process.

                      In fact, it is the process of rational deliberation itself. Writers should not be doing this for their readers. If writers practice objectivity on their readers’ behalf, they are drawing conclusions, and hence their writing is necessarily biased. To be precise, writers should practice neutrality so readers can practice objectivity for themselves. Neutrality is what we need if we’re to be free people, responsible for our decisions.”

                      He drafted the neutrality policy.

                      The policial items on Wikipedia are not following a neutral policy and therefore are biased.

  2. Biden quietly nixes Trump-era rule combating Chinese Communist-funded ‘propaganda’ centers

    President Donald Trump tried to enact a policy that would put pressure on American universities to reveal cooperation with China’s Confucius Institute.

    On January 26, President Biden quietly nixed the policy.

    A spokesperson for ICE confirmed to Campus Reform that the policy was rescinded.

    more at:

    Twitter video at:

    1. Biden really is the Manchurian candidate and we’d better wake up. We need a little more Churchill:

      “This is only the beginning of the reckoning. This is only the first sip, the first foretaste of a bitter cup which will be proffered to us year by year unless, by a supreme recovery of moral health and martial vigour, we arise again and take our stand for freedom as in the olden time.”

      The old Half-American, all man understood the threat and the solution.

  3. No, the Senate did not rule on the constitutionality of impeaching a private citizen. The Senate ruled on how much they hate Trump. No matter what a future President might be found guilty of, they will not be subjected to this, because the problem is not what Trump did or didn’t do. The problem is Trump’s massive electoral power. This is a problem for Democrats and Republicans alike (aka The Swamp). It’s a problem for the miltary industrial complex, it’s a problem for the bloated bureaucrats, it’s a problem for our enemies and yes we still have lots of them. I personally would rather see a moderate GOP President (in the unlikely event the cheating machines allowed that to happen which they won’t) but the reality is that the energy in the GOP is Trump energy. You have 80 million people who saw an election stolen in a country that is supposed to be the symbol of freedom and justice worldwide and those people are not going to be placated by some RINO. Add to that the “autolesionismo” the GOP seems to suffer from. It wouldn’t surprise me if Liz Cheney or somebody were the GOP’s nominee in 2024. Not content to sink the ship, the GOP will hasten to set fire to it. The main thing is that the kangaroos in the kangaroo trial distract people’s attention from the tremendous abuse of power that is happening under Biden. How many EO’s has he (or Jill) signed? How many trillions of dollars are being burned like monopoly money? How many jobs are being trashed? But yeah let’s milk the nonsurrection a while longer. The semi-comatose American people can’t get enough of the drama. “Two things only the people anxiously desire — bread and circuses,”

      1. “The election wasn’t stolen.”

        Anonymous the Stupid. That is a conclusion not based on fact.

        “80 million people didn’t vote for Trump.”

        That is also a conclusion that is not based on fact.

        You don’t provide facts or the variables behind the type of data you provide. That is beyond your expertise.

        1. China released a biological weapon, “China Flu, 2020,” 9 months before the 2020 election, in support of democrats.

          Donald J. Trump was on an inexorable path to a massive and historic landslide victory on November 3.

          80 million people voted for Trump before his votes were “shifted.”

          People were not required to present at a polling place.

          Dead people voted.

          Illegal aliens voted.

          People were allowed to avail themselves of patently insecure and corruptible vote-by-mail.

          Ballot chains-of-custody were broken; shattered.

          Election observers were denied access.

          Ballots roamed the precincts in the dead of night.

          Counting ended at 10 PM and restarted in secret at 1 AM.

          Thumb drives were inserted.

          The 2020 election was stolen.

          “Joke” Biden is a “fake” quisling un-president and his partner is wholly ineligible

          Next question?

  4. The senate did not declare this trial as constitutional. The democrats and a handful of swamplicans did. Partisan politics makes bad precedent.

    1. The Constitution gives the Senate the power to determine this: “The Senate shall have the sole power to try all impeachments.”

      1. Anonymous the Stupid, that gives the Senate the right or the option to try. You have a right to piss in your pants, but that is not necessarily a good idea.

  5. Belknap again?? Aw, man! No wonder I’m trying to slow down on the commenting. I’m going cold Turley starting now.

    1. Sometimes there are interesting items on the blog that are more relevant to readers. This one is on losing weight via pharmacological agent known as Semaglutide typically used for Type 2 Diabetes. It looks promising. Non-stimulant MOA

      OTOH people could reduce caloric intake and exercise but….

      Once-Weekly Semaglutide in Adults with Overweight or Obesity

      Obesity is a global health challenge with few pharmacologic options. Whether adults with obesity can achieve weight loss with once-weekly semaglutide at a dose of 2.4 mg as an adjunct to lifestyle intervention has not been confirmed.

      In this double-blind trial, we enrolled 1961 adults with a body-mass index (the weight in kilograms divided by the square of the height in meters) of 30 or greater (≥27 in persons with ≥1 weight-related coexisting condition), who did not have diabetes, and randomly assigned them, in a 2:1 ratio, to 68 weeks of treatment with once-weekly subcutaneous semaglutide (at a dose of 2.4 mg) or placebo, plus lifestyle intervention. The coprimary end points were the percentage change in body weight and weight reduction of at least 5%. The primary estimand (a precise description of the treatment effect reflecting the objective of the clinical trial) assessed effects regardless of treatment discontinuation or rescue interventions.

      The mean change in body weight from baseline to week 68 was −14.9% in the semaglutide group as compared with −2.4% with placebo, for an estimated treatment difference of −12.4 percentage points (95% confidence interval [CI], −13.4 to −11.5; P<0.001). More participants in the semaglutide group than in the placebo group achieved weight reductions of 5% or more (1047 participants [86.4%] vs. 182 [31.5%]), 10% or more (838 [69.1%] vs. 69 [12.0%]), and 15% or more (612 [50.5%] vs. 28 [4.9%]) at week 68 (P<0.001 for all three comparisons of odds). The change in body weight from baseline to week 68 was −15.3 kg in the semaglutide group as compared with −2.6 kg in the placebo group (estimated treatment difference, −12.7 kg; 95% CI, −13.7 to −11.7). Participants who received semaglutide had a greater improvement with respect to cardiometabolic risk factors and a greater increase in participant-reported physical functioning from baseline than those who received placebo. Nausea and diarrhea were the most common adverse events with semaglutide; they were typically transient and mild-to-moderate in severity and subsided with time. More participants in the semaglutide group than in the placebo group discontinued treatment owing to gastrointestinal events (59 [4.5%] vs. 5 [0.8%]).

      In participants with overweight or obesity, 2.4 mg of semaglutide once weekly plus lifestyle intervention was associated with sustained, clinically relevant reduction in body weight. (Funded by Novo Nordisk; STEP 1 number, NCT03548935).

      1. Estovir, if you remember your pharmacological history you will remember rainbow pills.

  6. During Riot, Senator Romney Almost Walked Into Mob

    Redirected By Officer Goodman

    Sen. Mitt Romney (R-Utah) said he did not know how close he was to danger on Jan. 6, after watching security video that showed him initially walking toward a pro-Trump mob that overran the Capitol in the violent siege.

    Romney bumped into Capitol Police officer Eugene Goodman, who directed him away from the mob. In the security footage, Romney can be seen turning then running away along with Goodman.

    “No, I did not know that was officer Goodman. I look forward to thanking him when I next see him,” Romney told reporters during a dinner recess after watching House impeachment managers lay out their case over several intense hours.

    Romney added that he felt “very fortunate indeed that officer Goodman was there to get me in the right direction.”

    When the trial resumed Wednesday night, Romney was seen talking to Goodman.

    House impeachment managers on Wednesday aired several clips of previously unreleased security footage inside the Capitol on the day of the siege, which included horrific scenes of what police officers endured as the mob overtook the building.

    “It was obviously very troubling to see the great violence that our Capitol Police and others were subjected to,” Romney said. “It tears at your heart and brings tears to your eyes. That was overwhelmingly distressing and emotional.”

    Romney, who has indicated he is open to convicting Trump, said he did not know whether the footage would change the minds of his fellow GOP colleagues.

    “I can’t predict how other people will react,” he said.

    Edited from:  “Sen. Romney Said He Did Not Realize How Close To Danger He Was Until Watching Security Footage”

    Today’s Washington Post

  7. We have 240 comments on a controversy from nearly five generations back on a thread wherein it’s a reasonable wager has only two participants who’ve ever held an academic law review in their hands. Haven’t heard from Darren Smith in a while, and I don’t blame him.



    A challenge by several House Democrats to Donald Trump’s election on Friday collapsed when they failed to persuade a single Democratic senator to join their protest.

    The short-lived, doomed-from-the-start effort — spearheaded by Reps. Sheila Jackson Lee of Texas and Barbara Lee of California — came during a joint meeting of the House and Senate to certify Trump’s Electoral College victory. Without sufficient support to challenge Trump’s victory, the Republican-led Congress moved ahead with an easy confirmation of Trump’s presidency. The only remaining step is for him to take the oath of office on Jan. 20.

    “It is over,” said Vice President Joe Biden, presiding over the meeting, after three Democratic House members lodged objections but failed to secure required support from any senator. His comment drew a standing ovation and cheers from the assembled Republicans in the room.

    The joint session of Congress is a legally required — and typically ceremonial — event to ratify the results of the presidential election. But members are permitted to challenge the validity of electoral votes, and for just the fourth time since 1877, they did so.

    There was no expectation that the protests would succeed — backers acknowledged that the Republican-led House and Senate would never act to impede Trump’s imminent presidency. But it’s a continuation of efforts by Democrats to poke Trump in the eye before he takes office and undermine what his team has described as a “mandate” to govern. Democrats have routinely cited Trump’s 2.9 million-ballot popular vote loss to Hillary Clinton and pounced on Russian meddling in the election to undermine Trump’s victory.

    Jackson Lee and her allies argued that widespread voter suppression in states won by Trump tarnished the results. They also pointed to research provided by a team of independent lawyers that found dozens of Republican electors were technically ineligible to serve. But their arguments failed to persuade their Senate colleagues to step forward.

    Though any single member may lodge an objection, only those supported by both a House member and senator are eligible for debate. Had the effort by House Democrats gained the support of a single senator, it would have delayed the confirmation of Trump’s victory by hours, forcing the Senate to retreat to its chamber and debate the merits of each challenged electoral vote.

    The attempted objections began immediately, when Rep. James McGovern (D-Mass.) protested Alabama’s electoral votes, citing Russian interference in the presidential election. His declaration drew a sharp round of booing from the Republicans in the chamber.

    Biden asked whether his objection was in writing and if he had the support of a senator. When McGovern acknowledged he had no senator, Biden quickly moved on.

    At times, Democratic objectors attempted to lodge complains over Biden’s attempts to gavel the session along. When Jackson Lee objected to Michigan’s votes, Biden gaveled her silent. But she quickly started speaking again while Biden repeatedly slammed the gavel and Republicans began shouting for “order” in the chamber. The episode was repeated when Jackson Lee objected to South Carolina’s vote.

    Other objections came from freshman Maryland Rep. Jamie Raskin and Arizona Rep. Raúl Grijalva.

    After the session, Republicans blasted Democrats’ failed anti-Trump effort.

    “It’s kind of embarrassing,” said Senate Majority Whip John Cornyn of Texas. He said senators didn’t join because “they realized it was just a protest and it wasn’t real.

    Colorado GOP Sen. Cory Gardner called the House members “a bit hypocritical” after Democrats criticized Trump during the campaign when the GOP nominee suggested he wouldn’t accept the outcome of the election if he lost. That senators refused to join them, Gardner said, “shows the respect for the people that the senators held.”

    House Democratic Leader Nancy Pelosi told reporters ahead of the session that she supported the rationale of the protesting lawmakers but that without a Senate backer, their effort was in vain.

    “Quite frankly, there’s nothing they could say in there that would be an overstatement of the reasons why we should have a floor discussion. But the fact is you can’t do it on a one-house basis,” she said.

    She added that the point of the protest was mostly symbolic, a chance for members to disapprove of Trump.

    “It’s not going to have an impact on the outcome of the election. So, that’s not the point. But I think that people don’t want the day to pass without registering concern,” she said. “In some cases, members are concerned about voter suppression. In some cases they are concerned about Russian influence on our election. There are a number of concerns. But really, it’s not going to have an impact at the end of the day.”

    The last time lawmakers forced debate on an electoral vote challenge came in 2005, when then-Sen. Barbara Boxer (D-Calif.) joined Ohio Rep. Stephanie Tubbs Jones to contest the Ohio electoral votes that guaranteed George W. Bush’s reelection. They spent two hours arguing that voting irregularities could have tipped the election in Bush’s favor but failed to convince their colleagues to reverse the outcome.

    There was little hope among Democrats for a different outcome this time, even if they had managed to secure support from a senator. Trump’s support among congressional Republicans runs deep, and they were all but certain to ignore technical challenges to electors’ qualifications.

    But the process never got that far. Without Senate support, the House Democrats’ protest repeatedly met Biden’s heavy gavel, and Democrats mounting the protests grew more and more exasperated.

    “Is there one United States senator who will join me?” said Rep. Maxine Waters (D-Calif.), after the electoral votes for Wyoming, the final state, were read aloud.


      This is ‘not’ the commenter long-known as Seth Warner. Instead it’s the blog troll, an unscrupulous loser.

      1. Here’s Anon back to the troll argument. Her last line of defense in a loosing effort. She thinks that her arguments are so convincing that there could not possibly be so many others who do not agree. It just has to be only one person using many aliases. She exclaims, “Just because I’m paranoid it don’t mean the trolls aren’t out to get me”.


          Thinkthrough is the same troll who posted as ‘Seth Warner’.

          Thinkthrough was first known as ‘Estovir’, yet he has long been known by a dozen ‘established’ names and countless one-day only names.

          1. The point of evangelization, promotion, or direct to consumer campaigns is to grow your market share, i.e. win converts. Up to now you have no credibility and are the butt of jokes of everyone on here. IOW, change your marketing strategies.

            Have you considered getting a paramour like women (or men) in Asia to keep you busy? Just saying

  9. Trump’s Defense Misrepresents Constitutional Law Professor 

    A constitutional law professor whose work is cited extensively by former President Donald Trump’s lawyers in their impeachment defense brief says his work has been seriously misrepresented.

    In a 78-page brief filed in the U.S. Senate on Monday, Trump’s lawyers rely heavily on the work of Michigan State University law professor Brian Kalt, author of the seminal article about impeachment of a former president. His work is cited 15 times in the Trump brief, often for the proposition that the Senate does not have the authority under the Constitution to try an impeached former president.

    The problem is that Kalt’s 2001 book-length law review article concluded that, on balance, the historical evidence is against Trump’s legal argument.

    “The worst part is the three places where they said I said something, when, in fact, I said the opposite,” Kalt said in an interview with NPR.

    Trump’s lawyers argue that the Senate lacks jurisdiction because Trump is already out of office, making an impeachment trial pointless. Kalt argues that impeachment is about more than removal; it’s about accountability and deterrence. “The framers worried about people abusing their power to keep themselves in office,” he adds. “The point is the timing of the conduct, not the timing of the legal proceeding.”

    Kalt is among more than 170 leading constitutional scholars who have formally weighed in on this issue, telling the Senate that contrary to Trump’s assertion, it does have the authority to try him.

    Edited from: “‘I Said The Opposite’: Critism Of Trump’s Impeachment Defense Intensifies”

    Today’s NPR

    1. Boy Anon you’ve got me convinced. 170 Democratic law professors tell us what they think. You have such a scary big number of partisans supporting your argument. I guess we’re just going to have to admit that this tidbit of news tells us that you have come to the correct conclusion. Two days ago it was 144. Next week it will be 197. Will this inflation ever stop. Oldest trick in the book. Most people agree was ruled out by advertisers long ago because people did not believe it. Still used by politicians to entice the gullible.

    2. Let’s just suppose that there are 2000 constitutional scholars in the nation. It must then follow that 1,830 scholars did not sign the letter. Maybe there are only 500 constitutional scholars in the nation. It must then follow that 330 scholars did not put pen to paper to affirm the position. Shouldn’t we consider those who abstained. You would think they would be rushing forward to add their support to the effort. Just put something out there for them to hang there hat on. Doesn’t matter what it is just get it out there. Makes sense? We don’t need no stinking makes sense. They’ll eat it like candy.


    (796 words)

    The argument that there is historical precedent for impeachment of officer holders that have left office has been grossly overstated by the House managers on the opening day of the trial of Trump’s impeachment. The overwhelming bulk of precedent is that office holders that resign after they are impeached in the House are not tried in the Senate. To date, there have been 21 impeachments of 20 individuals. Four of these impeached individuals left office before the Senate trial, and the Senate trial did not happen, Trump being the first to be impeached twice. These four who were not tried because they left were: (1) US Senator William Blount impeached by the House in 1799; (2) District Court Judge Mark H. Delahay impeached by the House in 1873; (3) District Court Judge George W. English impeached by the House in 1926, and (4) District Court Judge Samuel Kent impeached by the House in 2009.

    Surprisingly, the House Managers specifically mentioned US Senator William Blount as somehow “supporting” the case there is jurisdiction to impeach former President Donald Trump when it does precisely the opposite. Senator Blount was the first person impeached by the House. On January 11, 1799, the Senate voted 14 to 11 to dismiss the impeachment, arguing that impeachment did not extend to senators: Senator Blount was another example of a person impeached by the House, for which there was no trial in the Senate, wherein Blount had left office at the time of trial.

    Failing to mention three district court judges who were impeached by the House but were not tried in the Senate because they left office, mischaracterizing the case of Senator Blount which actually was precedent for not trying in the Senate a person impeached by the House who had already left office, the House managers correctly point to the case of Secretary of War Belknap in our nation’s centennial year, but grotesquely overstate its import. Like President Trump, Belknap’s defense managers argued that the Senate had no jurisdiction. But it was hardly overwhelming support of unanimity or near unanimity. The Senate ruled by a vote of 37–29 that it had jurisdiction, a victory for sure, but a suspicious and partisan one which was highly fractured.

    Then there was the case of President Nixon, who undoubtedly was going to be impeached and convicted. After he resigned from office the House decided not to impeach, let alone have a trial in the Senate. Finally, there was a common mistake, an excessive reliance on the ways and habits of our English forefathers. Without doubt, much of what American’s cherish is based on the privileges and ways of the English common law. But the American colonies found many English practices odious: after all, we rebelled. A common mistake of constitutional scholars that I often encounter is to interpret our federal and state constitutions and other positive law based upon English practices, devoid of context of whether those who wrote American constitutions intended to follow the English practice in the first instance when drafting the law.

    Which brings me to the case of the Englishman Warren Hastings, often cited as historical precedent for impeachments after one has left office. It is of local interest that Warren Hastings was largely supported by William Pitt, an English statesman after which Pittsfield is named. The claim often made is that Hastings was foremost in the mind of our founders when they crafted the impeachment clauses of the United States Constitution. But while it must be conceded that our founders would have had to be aware of Hastings’ impeachment, to date, I have not seen an actual quote by our nation’s founders that Hastings’ impeachment was something to emulate.

    After all, Hastings impeachment trial was an unmitigated train wreck and he was ultimately acquitted after going broke defending himself. The house sat for 148 days over a period of seven years during the investigation. It began in 1787 and ended in 1795. According to Wikipedia, a third of the Lords who had attended the trial’s opening had since died and only twenty-nine of the others had sat through enough of the evidence to be permitted to pronounce judgement. Hastings was ultimately acquitted, but that is beside the point. This unmitigated disaster of trial happened precisely because it was allowed to drag on long after Hastings was no longer in office. A word search of all the Federalist papers shows 52 appearances of the word “impeachment.” Not once in the Federalist papers was the impeachment of Warren Hastings mentioned. And while too much emphasis can be placed in the mindset of just one founder, in Federalist 66 Alexander Hamilton defends impeachment trials in the Senate at length—Hamilton does not mention impeachment of those that have already left office.

    Rinaldo Del Gallo, III
    Attorney at Law
    (413) 445-6789

      1. Tabby, what are you babbling about?? I’m not in the habit of quoting private attorneys and including their phone numbers.

    1. I don’t believe that the very smart Founders would have wanted a “criminal” President (or other official subject to impeachment) to be able to escape scrutiny and punishment simply by resigning a moment before the Senate was about to find him or her guilty as charged.

      If you disagree, please explain why this is a logical construction of the impeachment clause of the Constitution.

      1. If the conduct was “criminal” as you say, the official could be indicted, tried, convicted and punished under the criminal law. Once an official is removed from or otherwise ceases to be in office, impeachment is irrelevant.

        1. By “criminal” in this context I clearly meant having committed a “high crime and misdemeanor” under the impeachment clause. As has been discussed at great length, impeachment does not require the commission of a statutory crime. Sorry if I confused you.

          1. And impeachment is certainly not irrelevant after an official leaves office. After impeachment, the Senate could vote to disqualify that person from ever holding federal office again. If you had not thought about that … like Trump attempting to run for President again in 2024, 2028 …forever!

            1. RDKAY, I am not going to try and explain the reasoning, but you sound like a Fascist.

                1. RDKAY, that is not an insult. It is characterizing exactly what you are proposing. What you suggest is part of the nature of fascism and oligarchy. If you want to look like a person that supports individual freedom you have to diminish the power of government not expand it.

                  Please do not take the word fascist as an insult.

                  1. @S. Meyer. Excuse me if I misconstrued your characterization. But I daresay that most people who are called a “fascist” would feel that they had been insulted. If you disagree, you must be living on another planet.

                    1. RDKAY, No, actually some western leaders before WW2 looked at fascism with a favorable view at times. They learned differently but to some such concentration of power seemed like a good idea. You seem to lean in that direction as well.

                      By the way I am living here on planet earth and have had a good education. Books do that for people so if you think I live on another planet perhaps you don’t read.

              1. Once again, the your a doo doo head argument. S.Meyer sure has got his nuanced argument down to a tee.

            2. This is only true if you think that something in the constitution authorises the trial and conviction of anyone other than a current civil officer. Nothing in Article 2 does so, and when it says that an officer “shall” be removed upon conviction it conclusively implies that only current officers may be convicted, because only they are capable of being removed. The House Managers argue that Article 1 does so by referring generally to impeachments, meaning that Article 2 is simply a specific case of a more general authority in the House and Senate to impeach and convict. But if this is correct then there is no limit whatsoever on who may be impeached or for what reasons, since the references to the President, Vice President and other civil officers, and to treason, bribery and other high crimes and misdemeanours, are all in Article 2.

              1. The Constitution authorizes the trial, conviction, and disqualification of anyone impeached by the House. In the impeachment trial yesterday, there was a long discussion of whether the Constitution permits former Presidents, former officers, etc. to be tried or not. Did you watch it? If not, I suggest you do so, as there was a series of presentations about the history of the relevant text in the Constitution and why the question’s answer is “yes, it does.”

                “when it says that an officer “shall” be removed upon conviction it conclusively implies that only current officers may be convicted, because only they are capable of being removed”

                No, it doesn’t imply that. It only implies that IF the person is a current officer, THEN that person shall be removed upon conviction. It does not imply that only current officers can be impeached.

                “if this is correct then there is no limit whatsoever on who may be impeached or for what reasons”

                Conviction and disqualification would have no effect on the average person (who is not in office and so cannot be removed, and who has no plans to ever seek office), and I think the Founders assumed that House would not impeach people without reason, and the Senate trial would be a fair one with a high bar of 2/3s vote in favor removal and disqualification, with no other effect. Moreover, the Article II conditions apply to those named in Article II, and that provides a significant limit on the reasons for impeachment for those people.

                1. You are reading an awful lot into the text that isn’t there (e.g., IF, THEN). In the end, though, you see no constitutional limits on whom the House and Senate may impeach and convict, and then disqualify from any future office, and for what reasons. I do not believe that is the better view of how the constitution should work in this area.

                  1. When you discuss implications, they are never explicitly there. If they were explicitly there, then you’re talking about the explicit text, not what the text implies.

                    You said “when it says that an officer “shall” be removed upon conviction it conclusively implies that only current officers may be convicted, because only they are capable of being removed,” and I disagree that it implies that. You think I’m reading a lot into it; I think you’re reading a lot into it.

                    “you see no constitutional limits on whom the House and Senate may impeach and convict”

                    The Constitution sets a limit by also saying “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.” I don’t expect that they’d try to impeach and convict without removal for some other reason, but if that worries you, then the country can address it by introducing and ratifying a clarifying amendment. Trump was impeached while in office for a high crime committed in office. We’ll see whether the Senate convicts and disqualifies him.

                    1. Please explain how it is possible for anyone not in office to be removed from office. If it is not possible, then article 2 can only be about currently serving officers, and the authority for impeaching and convicting others, including former officers, must be found elsewhere. If that authority is found elsewhere, then it is not governed by article 2, and so the standard of treason, bribery or other high crimes and misdemeanours, which is found only in article 2, does not apply if those others are impeached.

                  2. The colonists never considered the implications, after 150 years of salutary neglect, that their government would exercise abusive policies against them. 13 years later, they documented 28 ways in which their government did. It is reasonable to conclude we’re on the same trajectory.

                  3. Daniel, someone who is not in office cannot be removed, but that person can be convicted and disqualified.

                    Re: “the authority for impeaching and convicting others, including former officers, must be found elsewhere,” it’s found in Article I, Sections 2 and 3: “The House of Representatives … shall have the sole power of impeachment,” and “The Senate shall have the sole power to try all impeachments.” Those statements aren’t restricted to those in office.

                    Article II applied when Trump was impeached, as he was still President. It no longer applies, as he’s no longer President, but Article I, section 3, clause 7 does still apply, as it’s not limited to those in office: “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 …”

                    Claiming that judgment shall not extend further than X and Y doesn’t mean that both X and Y have to occur. Yes, I understand the conjunction “and,” but I also understand that it’s preceded by “shall not extend further than.” Just as it is possible to remove someone from office without disqualifying them (as occurred with Judge John Pickering, for example), it is possible to disqualify without removal if the person is already removed. It’s not possible for the person to be disqualified without removal if they’re still in office, because of Article II, Section 4, which requires removal (“shall”).

                    1. So you must believe the constitution authorises the impeachment and conviction of anyone for anything. I don’t.

                    2. Daniel, it’s striking that you have nothing to say about what I wrote.

                      Why do you try to shift the discussion to what you imagine I believe? If you want to know what I believe, you should ask. Better yet, focus on what I already said about why someone who is not in office can be convicted and disqualified. I also encourage you to focus on the case at hand. Trump was impeached while in office, for a combination of harmful actions and failure to act that he took while in office. It’s not an example of an impeachment of a random person for a random act.

          2. Whatever the official did can be taken into account if he or she again seeks elective or appointive office. It should be up to the electorate, or those elected officials charged with making or approving appointments, to decide at that later time whether the person is too dangerous to return to office. The limited function of impeachment as set out in Article 2 is to remove from office a person who has committed treason, bribery or other high crimes or misdemeanours. The procedures for doing this are set out in Article 1. To read a more expansive meaning into the substantive provisions governing impeachment from the procedural provisions of Article 1 could do untold mischief, since Article 1 has no limitations whatsoever on who may be impeached or convicted or what the charges could be.

            1. Most legal scholars disagree with you that former officers, former Presidents and former VPs cannot be impeached, and the House Managers gave a long presentation yesterday about the history and why impeachment should be interpreted as including them. Did you listen to it? If not, I encourage you to do so. It’s available on C-Span.

              1. Anon, your statement about most legal scholars agree should be backed up by some poll that you’ve found. The word most infers that over 50% of legal scholars agree. Please sight your source in proof of your assertion. Remember it must include at least 50% or it will be just another hyperbolic pronouncement. Could it be that you only find your comfort there?

                1. I found the article by Phillip Bobbitt on the Lawfare blog to be the best short treatment of this subject (he comes out the same way I do so it may not be too surprising that I find his arguments reasonable). I don’t know if my views are in the majority or minority, but I don’t think that matters. What counts is the quality of the analysis.

                  1. Agreed that the quality of the analysis matters, and I’ll look at Bobbitt’s discussion. If it’s a good analysis, he’ll address whether someone in office can avoid disqualification simply by resigning (or, if already rejected by voters, as Trump was, by leaving office before the trial).

    2. Thank you for this post. The textual argument is overwhelmingly in favour of limiting impeachment trials to those still in office, and the weight of historical evidence appears to point the same way.

      1. Your interpretation of the text is entirely conclusory. And most Constitutional scholars disagree (although that is certainly not determinative). But the logic of my earlier comment has not ben refuted by you or anyone else (so far as I know).

        1. It’s not conclusory. It’s based on a close reading of Article 2 and Article 1, and draws out the extreme implications of using an open ended Article 1 as a basis for determining who may be subject to impeachment and conviction.

          1. So you think they might impeach, convict, and disqualify Dolly Parton (for example) for some random reason, in order to make sure she never holds office? You don’t think they’re smart enough not to do that even though it’s not prohibited?

            Give an example of someone you actually fear they might unjustly impeach, convict, and disqualify.

            1. Imagine Mike Pompeo gains political traction with the Trump base heading into 2024 and the Democrats have retained control of the House. You see no limit in the constitution on his being impeached for some high crime or misdemeanour he is alleged to have committed as Head of the CIA or Secretary of State.

              1. Unless there’s some evidence that comes out about his having committed a high crime we’re not currently aware of, I’m not worried that they’re going to invent one with the hopes that the Senate would convict and disqualify him.

                1. I don’t see why your being worried about something or not should influence anyone’s view of the constitution.

                  1. I didn’t say it should. We were discussing whether “they’re smart enough not to do that even though it’s not prohibited.” As partisan and stupid as they sometimes are, I think they’re smart enough not to impeach Pompeo without cause, simply to disqualify him from future office.

        2. The people who wrote the Constitution left a written record. Are they not counted as “constitutional scholars”?

          1. Sure, but their written record is sometimes ambiguous or incomplete. They did not take an explicit stance on this question, whereas current-day scholars are taking an explicit stance.

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