The House of Representatives has passed articles of Impeachment for President Trump and formally delivered them to the Senate. Thus, former President Trump has been impeached. The enactment of the articles and their delivery completes this part of the process. Even though delivered after the President’s term, he is still impeached, but that conclusion is not universally recognized, such as by Republican Senator Rand Paul who introduced a motion in the Senate stating a former President is not impeachable. It was voted down. Everything that goes on from this stage forward is expected to be filled with political maneuvering. It will only become finalized when one of three mutually exclusive conclusions is reached: the trial is dismissed, or ends with conviction or acquittal. If Rand Paul’s motion would have been passed, the House of Representatives, aside from having apoplexy, could sue to have the Impeachment reinstated, The Supreme Court would probably accept that case, but there is no certainty as to their action. It would be without precedent, but my opinion is revealed later in the essay when I discuss a “giveaway.”
The Constitution is the sole “rule of law” concerning impeachment. Individual members of Congress have done cheerleading for their party’s position, but otherwise worthless. Both the House and Senate, have on occasion, made rules concerning actual Impeachment cases, but those rules seldom result in precedent because subsequent Senates are capable of making their own rules and disestablishing precedents. Given the paucity of research in the media, they are more apt to use whatever partisan position suits their editors or the publisher. Neither the House nor the Senate has sterling records of discerning the difference between politics and Constitutional law, and likewise the respective political parties; Democrat and Republican.
Moving on to what the Constitution tells what to expect. The word removal appears in the Constitution in Article II, Section 4, and provides, “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.” That sentence implies the impeachable offense was actually committed (to be affirmed by the Senate in trial) and probably also that the officer is still in office at the time of the trial. If he were not, he is no longer be “removable!” If the trial’s conclusion is the person is guilty, but can’t be sentenced with the only available punishment – removal – it doesn’t make any sense to go on — except for the political appearances. It is like trying and convicting a dead person. Impeachment isn’t criminal law, but a dead person can’t be tried and if guilty, certainly not be sentenced. Cased dismissed on account of Article II, Section 4 of the Constitution.
Article I, Section 3, Clause 7 provides punishment for Impeachment as follows: “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….” Then punishment consists only of two types, and none others; and the second punishment is only an addition to the first, and does not stand alone. It must be preceded by conviction by two-thirds of the Senate, and then the standard for applying the second sentence is only the standard of a majority of the Senate. If not convicted of the single article of Impeachment, Trump cannot be disqualified from future office. Conviction by two-thirds is very unlikely, given that it takes seventeen Republicans to convict, plus 100% of Democrats.
Removal also occurs in Article II, Section 1, Clause 6, regarding Presidential succession. Succession is required on account of a President’s Removal, Death, Resignation or Inability to act (a “permanent status” as the other three are too). Thus succession requires the currently serving President to be in place; if not in place, he is not subject to removal by definition. It seems the Constitution has impeachment specifically in mind as being the only situation in which Impeachment has required removal. As in Impeachment, removal seems to require his presence in in office in order to be actionable.
Finally, the Constitution requires that the Chief Justice of the Supreme Court shall preside in the Impeachment trial of the President. Chief Justice Roberts has notified the Senate that he will not be present for the Impeachment trial, and the Senate provided that the President Pro Tempore is presiding in his absence. Article I, Section 3, Clause 6 provides that, “The Senate shall have the sole Power to try all Impeachments. When sitting for that purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members Present.” This seems to indicate the Chief Justice is of the opinion that he is not required to preside over the impeachment trial as otherwise he must have a very good reason for not performing this Constitution duty. Therefore, the Chief Justice seems to have concluded the trial is not of The President, but of a former President, who may not be impeachable or at least not capable of being tried after his term of office has expired. The Chief Justice’s action seems to be a hard giveaway of a legal opinion from the top to be expected in the Impeachment trial. If that occurs, what will be the reaction of the Senate? To stay the course seems futile. To adjourn without result also appears to be an embarrassment. How will the Democrats and particularly the media respond? If that does not result, how will I respond?
Publiustoo.com January 27, 2021