Double Jeopardy: Answers to Six Questions About Donald Trump’s Second Impeachment Trial

Posted in: Constitutional Law

“On January 13, 2021, he became the only U.S. president to be impeached twice.”

By a 232-197 vote, the House of Representatives assured that future Jeopardy! viewers will someday jump off the couch in response to such a clue and shout, “Who is Donald J. Trump?”

As long as the American Republic survives, Trump’s four-year reign is likely to remain notorious enough that this will be a low-value, $100 question. But what about the tougher questions (and answers) raised by this unprecedented impeachment, coming as it does just seven days before the expiration of Trump’s term in office? So, in homage to the late Alex Trebek, here’s a guide to help you study up for future trivia as it unfolds.

$200: Can the Senate act in time to remove Trump from the presidency?

As we all know by now, impeachment is a two-stage process. The House first approves Articles of Impeachment, for which only a majority vote is needed. The Senate conducts a trial, requiring a two-thirds vote of those present to convict and remove an official from office.

Even if the Senate acted immediately, it would be a formidable challenge to complete a fair trial before Trump leaves office. But Mitch McConnell, the current Senate Majority Leader, has already rejected calling the Senate back into session before its currently scheduled return on January 19, claiming that do so would require unanimous consent of all 100 senators. McConnell’s game is not clear: he has shown some openness to convicting Trump, but without any urgency to do so. McConnell’s move seemingly ensures that Trump will remain in office through the end of his term at noon on January 20, leaving security for Joe Biden’s inauguration in the President’s far-from-trustworthy hands.

Trump’s departure from office—assuming that he leaves it without further violence—may take much of the air out of the impeachment balloon. But as long as there is time on the scoreboard and Donald Trump is in the Oval Office, you simply never know what’s going to happen. Just 10 days ago, the idea of a second impeachment was almost unfathomable. But in the course of a few hours, Trump somehow made it inevitable. As long as Trump remains in office, he could still say or do something even worse than inciting the January 6 putsch —if that is conceivable—something that requires immediate countermeasures.

If that happens, McConnell has the upper hand. Under a 2004 statute, the majority and minority leaders of the Senate can agree to reconvene without unanimous consent in an emergency. McConnell obviously chose not to exercise this authority now, though his Democratic counterpart, Minority Leader Chuck Schumer, urged him to do so. But McConnell could use the possibility of an emergency session to deter Trump from doing further damage before January 20, leaving it in Trump’s hands to run out the clock on the remainder of his term.

$400: Can the Senate hold an impeachment trial after Trump has left office?

The question immediately arose whether the trial should proceed if Trump is no longer in office. The Constitution does not directly say. Art. II, Sec. 4 provides that “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.” Does that apply only to current officials, or to former officials as well?

A debate over this question quickly unfolded in the pages of The Washington Post, where the respected former Fourth Circuit Court of Appeals Judge Michael Luttig argued that the Senate could only try an impeachment of a current official. Laurence Tribe of Harvard Law School responded that the constitutional text, the original understanding of the Founders, and historical practice of Congress conclusively show otherwise. Having been taught Constitutional Law by Professor Tribe, I may be somewhat biased, but it is hard not to conclude that he got the better of the argument, which Judge Luttig appeared to acknowledge on Twitter.

As Professor Tribe pointed out, an impeachment trial does not become moot after an official leaves office, because in addition to removal from office, punishment on conviction can extend to future “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (Art. I, Sec. 3, cl. 7). The Senate has twice conducted impeachment trials after the targeted official had left office, either by expulsion (Senator William Blount in 1797) or resignation (Secretary of War William Belknap in 1876). In the latter case, Belknap quit moments before he was impeached by the House, in a clear effort to minimize his infamy. The Senate voted to proceed with the trial anyway.

Judge Luttig argued that the Supreme Court would be unlikely to uphold a post-departure conviction by the Senate. But the Senate, not the Supreme Court, has the final word on impeachments, as the Supreme Court itself acknowledged in Nixon v. U.S. (1983). In that case, a former federal judge (not the disgraced 37th President) challenged the manner in which the Senate had conducted his impeachment trial for perjury. The Court found that the claim was non-justiciable because the Constitution grants the Senate the “sole power” to try impeachments in Art. I, Sec. 3, cl. 6. While Trump could try to challenge his disqualification in the courts, the Supreme Court is likely to continue to defer to the Senate unless there has been a clear violation of the unambiguous text of the Constitution. In this case, the weight of authority and tradition strongly supports a post-exit trial.

$600: Who Will Preside Over the Senate Trial?

The Constitution provides that “When the President is tried” in an impeachment, “the Chief Justice shall preside.” (Art. I, Sec. 3, cl. 6). But does “the President” mean the current President only? Or does it mean anyone who has been President? The text of the Constitution does not say.

To answer this question, we need to know why the Constitution gave this role to the Chief Justice, and why it applies only in the case of the President. Was it just to add some more pomp and gravity to the President’s trial? That is unlikely. The Chief Justice’s placement on the dais of the Senate in this situation is quite unique. No other role in the Constitution is remotely comparable in straddling two normally separate branches of government, except the role of the Vice President (an executive officer) who simultaneously serves as the President of the Senate (part of the legislative branch).

And there’s the proverbial rub. The authors of the Constitution were clear-eyed about potential conflicts of interest. If the Vice President were to preside over the impeachment trial of the incumbent President, it would be a whopper of a conflict. After all, if the President is convicted and removed, the Vice President would become President. On the other hand, if the Vice President’s conduct of the trial favored the President’s acquittal, the Vice President could reap benefits as well. So, the Constitution inserted the Chief Justice into the role of presiding to avoid placing the Vice President in such a compromised position. For the impeachment of any other official, there is no conflict and the Vice President can preside (or, in practice, can yield to other officers of the Senate for this purpose).

In the impeachment trial of a former president, the Vice President does not have the same conflict of interest. Conviction of Donald Trump would not elevate Vice President Kamala Harris to the presidency. Accordingly, there is a strong argument that the Chief Justice need not preside over Donald Trump’s second impeachment trial. The Senate majority (which, after January 20, will be in the Democrats’ hands, thanks to Ms. Harris’ tie-breaking vote) could decide this question for itself, and rely on the Nixon v. U.S. precedent to say that this determination will be conclusive.

Nevertheless, it would be wise for the Senate to invite Chief Justice Roberts to preside anyway. The Chief Justice’s role is specified in the Constitutional, and if this step is omitted, it could give Trump a hook to challenge a Senate conviction in the Supreme Court on more favorable facts than those presented in Nixon v. U.S. But if Roberts declines to preside because he does not think the constitutional requirement applies to former presidents, then it would be almost inconceivable for the rest of the Supreme Court to question that decision later.

Short answer: A secure conviction requires the Chief Justice in the chair. It is a task worthy of his time. John Roberts should start measuring his impeachment robes.

$800: Will There Be Witnesses?

The most consequential decision in Donald Trump’s first Senate impeachment trial was to exclude new witness testimony, a choice that Sen. McConnell pushed and the Senate approved by a razor-thin 51-49 vote. This deprived the impeachment managers of potentially explosive televised testimony from former National Security Advisor John Bolton, who had refused to testify before the House, as well as other first-hand witnesses. Instead, the Senate relied on the record compiled by the House and heard only legal arguments from the impeachment managers and Trump’s defense. Still, the trial lasted 20 days.

Trump’s second impeachment trial will likely be quite different. For one thing, it won’t be running on McConnell’s schedule this time. Schumer’s Democrats will command a Senate majority after January 20 and can set the rules. Also, the House did not compile anything like the detailed testimony and factual record it put together for the Ukraine impeachment. The House relied on facts already readily known to the public (televised speeches, tweets, etc.), as well as the lawmakers’ own direct experience of the Trump-inspired attack on their workplace. They did so knowing that a more thorough investigation could reveal even deeper culpability, but that time did not permit one. “Much more will become clear in coming days and weeks,” as Republican Rep. Liz Cheney gently hinted in her statement supporting impeachment, “but what we know now is enough.”

It was enough to convince a majority of the House, including all 222 Democrats and 10 Republicans. But will it be enough to achieve a two-thirds vote in the Senate? There is every indication that GOP support for conviction is much stronger in the Senate than it was in the House. For many, simply playing a tape of Trump’s speech immediately preceding the attack on the Capitol will be sufficient proof of his guilt. But are there 17 Republican votes to convict? And will senators’ anger at Trump dissipate after he no longer poses a direct danger to their safety after Jan. 20? There is reason for skepticism on both counts.

At the same time, the case against Trump may grow even stronger, as investigators probe connections between the White House, congressional instigators, and the mob itself. Moreover, the House’s Article of Impeachment barely touches on Trump’s inaction after the attack began. Many press reports have indicated that the President gleefully welcomed the storming of the Capitol and for many hours ignored the pleas of his staff to intervene. If so, this would speak loudly to Trump’s state of mind when he stoked the crowd’s anger and to whether he intended or welcomed their violent reaction. His “malicious inaction” could be an impeachable offense in itself. But much of this information comes from blind quotes to reporters or other hearsay. The House could not rely on it without taking witness testimony under oath. Particularly after Trump leaves office, the Senate may have the opportunity to put damning new information on the record. That would extend the trial —possibly at the expense of President Biden’s legislative agenda —but it may also close the deal.

If the outcome of the vote is clear (in either direction), then a short trial with few or no witnesses is likely. But if a two-thirds majority appears to be dangling within reach, expect the Democratic-controlled Senate to push for more fact-finding and a longer trial —to the likely chagrin of the new President, and the possible satisfaction of Sen. McConnell in his new role as Minority Leader.

$1000: Can Trump be barred from future office without a two-thirds vote in the Senate?

No… and yes.

The Senate must first convict Trump of the “High Crimes and Misdemeanors” alleged in the Article of Impeachment. The Constitution clearly states that “no person shall be convicted without the Concurrence of two-thirds of the Members present.” That would normally mean 67 votes to convict, though absences could bring that number down.

If convicted, an impeached official is automatically removed from office. But disqualification from future office is not automatic (although that would have been a reasonable interpretation of the Constitution). Instead, the Senate holds a second vote to bar the door on future office. This time, a two-thirds vote is not required—a simple majority would suffice.

It is difficult to imagine 67 Senators voting to convict Trump without at least 50 of them choosing to also bar him from ever serving in office again. This would be especially true if the trial takes place after January 20, when its primary purpose would be to keep him out of future office.

But the opposite scenario is far more likely: that a majority of the Senate agrees that Trump should never serve again, but they cannot muster a 2/3rds vote to convict him. Does that leave them without any recourse?

Perhaps not. Section 3 of the Fourteenth Amendment, enacted in response to the Civil War, bans various officeholders (including presidents) who have “engaged in insurrection or rebellion” against the United States from ever serving in any political office again.

Applying this provision directly to Donald Trump would not be as easy as some commentators have suggested. A simple act of Congress might not suffice. Prof. Daniel Hemel of the University of Chicago Law School has outlined several practical difficulties, such as existing legislation (the Enforcement Act of 1870) that leaves enforcement of Section 3 in the hands of the courts and the constitutional prohibition against bills of attainder (laws that target a specific individual). But Congress could take broader action to establish a mechanism for disqualifying the perpetrators of the January 6 assault on the Capitol from holding office. That process is likely to take a while.

The most effective way to block a second coming of Donald Trump is still to attain a two-thirds vote in the Senate to convict him of “Incitement of Insurrection,” followed by a majority vote to bar him from office. Otherwise, the ballot box (or the penitentiary) will likely have to suffice.

Final Jeopardy: Will Trump lose his post-presidential perks if he is convicted by the Senate?

Some reports have suggested that, in addition to being barred from future office, Trump stands to lose a lot more if convicted by the Senate. He could forfeit a whole range of benefits granted to former presidents, including a $220,000+ annual post-presidential pension, a government-provided office, a $1.5 million annual travel allowance, lifetime security services provided by the Secret Service, a state funeral, and the option of burial at Arlington National Cemetery.

The Former Presidents Act of 1958 was designed to ensure that our outgoing chief executives could enjoy a dignified and safe retirement, even if this required considerable public expense. For a president ousted through impeachment, however, it seems worth asking whether these perks of office are justified. With the exception of security protection, it seems fair to deny these benefits to presidents who have abused their powers or violated the public trust.

Once again, however, the details are tricky. In granting these perks, the Act defines a “former President” as a person:

  1. who shall have held the office of President of the United States of America;
  2. whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America; and
  3. who does not then currently hold such office.

The peculiarities of this language will immediately be apparent to attentive readers of this column. If Donald Trump is convicted by the Senate before noon on January 20, 2021, then his service as President will “have terminated… by removal pursuant to section 4 of article II of the Constitution” (that is, the impeachment clause). But otherwise, his service in office will “terminate” due to the expiration of his term. That is true even if he is convicted by the Senate “under section 4 of article II of the Constitution,” because after January 20 he is no longer subject to “removal” from office.

Words matter. Donald Trump has been learning that the hard way. But in this case, words may help him just a little. Unless Congress chooses to amend the Former Presidents Act, the plain language of the statute suggests that Trump will keep his perks, as long as the Senate trial is delayed until after he leaves office. That’s money in the bank he may well need.

As for the rest of us, what pension will we draw from Donald Trump’s four tumultuous years in the White House? Will January 6, 2021, mark the day when the United States decisively closed its books on authoritarianism? Or was it the first of many risky wagers that will eventually run our balance down to zero?

I will leave my answer in the form of a question: Who knows?

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