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.