Senators gather Tuesday to debate the constitutionality of impeaching a former official before the trial of former President Donald Trump can get underway.
WASHINGTON (CN) — Over 140 years ago, Secretary of War William Belknap was accused of profiting off his position. An investigation was launched by the House of Representatives and Belknap was set to be impeached — but before lawmakers could remove him, he tearfully resigned his post.
The House went ahead and impeached Belknap anyway, and the Senate eventually acquitted him of his charges. Another vote in the Senate quickly followed, this one finding that, regardless of his former-official status, Belknap’s impeachment was constitutional.
Tuesday afternoon, as the constitutionality of impeaching of a former official unfolds again, the Senate takes up the argument first brought two weeks ago by Senator Rand Paul.
At odds with a wide array of legal scholarship on the subject, the Kentucky Republican made the case that to impeach Trump after he has left office was wholly unconstitutional.
Senior aides for the House lawmakers who will prosecute Trump —known here as impeachment managers — described such arguments as baseless.
“And it’s certainly understandable why he doesn’t want to defend his conduct because it is truly indefensible,” one senior aide said, speaking on background Tuesday morning. “But the argument they are putting out? You are going to hear it really sliced to shreds by our tremendous managers who will show that [the defense’s] attempt to create a January exception to the Constitution is completely bogus.”
The aide also said that the trial, once officially underway, would be treated like a “violent prosecution.”
“Because that’s what it is,” he continued.
U.S. Capitol Police officer Brian Sicknick and four others died as a result of the melee on Jan. 6, which occurred as hundreds of officials, including Vice President Mike Pence, were in the Capitol for the Electoral College count of the 2020 election results. Mere seconds after the armed mob breached the building, security whisked Pence away to safety.
“Managers will show [the attack] was in fact, far worse [than it appeared] and could have been much, much worse,” the aide remarked Tuesday morning.
Defense attorneys for Trump maintain he bears no responsibility for the attack, having largely chalked up the former president’s remarks to colorful ones protected by the First Amendment.
The aide predicted that defense attorneys will zero in on Trump’s single use of the word “peacefully” during his “Save America” rally on the morning of the siege, beginning his final two weeks in office.
“But any errant tweet or comment they can take out of context … is just as bad. There is absolutely no serious credible comparison to what Trump did,” the aide said, going on to call Trump’s comments and actions last month a “betrayal of his unique responsibility as commander in chief.”
“The evidence of Trump’s guilt in this case is overwhelming,” he continued. “There is no excuse and no real defense for Trump’s conduct, both in how he caused the attack and how he refused to intervene to stop it.”
The National Guard was hesitant to intervene in quelling the mob’s attack on the U.S. Capitol. This was later revealed to be, in part, the fault of Trump. Reports later emerged that it was Pence who instructed the National Guard to defend lawmakers while Trump continued tweeting about his electoral defeat.
The former reality television was impeached for the second time of his term exactly one week later. By a 232-197 vote, lawmakers catalyzed the second Senate trial of Trump on one article of impeachment for incitement of insurrection.
Beginning at 1 p.m. Tuesday, House impeachment managers will have up to two hours to debate whether the trial is constitutional. Defense attorneys will have the same amount. Lead impeachment manager Jamie Raskin, a Maryland Democrat, will speak first, followed by Colorado Representative Joe Neguse and Rhode Island Representative David Cicilline.
“They will lay out that for 200 years it is understood that the Constitution itself requires former officers to be impeached. The precedent of the Senate supports it. There has never been a case where a former official can’t be impeached after they have left office,” another aide said ahead of the debate on the Senate floor.
While possible that lawmakers could find the trial unconstitutional, the likelihood of that is exceedingly low. Legal scholars the nation over, including those at the conservative Federalist Society, issued a letter on Jan. 21 dismissing Trump’s defense that a former official cannot be impeached.
“History supports a reading of the Constitution that allows Congress to impeach, try, convict, and disqualify former officers. In drafting the Constitution’s impeachment provisions, the Framers drew upon the models of impeachment in Great Britain and state constitutions,” the 7-page letter signed by more than 100 legal scholars states. “In 1787, English impeachment was understood to allow for the impeachment, trial, and conviction of former officials; likewise, the law of several states made clear that waiting to impeach officials until they were out of office was preferred or even required, and no state barred the impeachment of former officials.”
Citing the case of former Secretary of War William Belknap, the legal scholars noted that, even in cases when impeachment proceedings were dismissed after a subject resigned, Congress indicated that it was choosing to drop the case rather than being compelled to do so by the Constitution.
“Belknap was not a president but there is no reason why the same rule would not apply to presidents — after all, the Constitution’s impeachment provisions apply to presidents, vice presidents and civil officers alike,” the letter notes.
Ahead of the debate on the Senate floor, senior aides to the impeachment managers remarked how “unthinkable” it would have been for Framers to suggest, let alone write into law, a provision that says a president cannot be impeached no matter what he or she did in the final days of office.
Such a course of action would allow a president to misuse power at the most dangerous time — when the president wants to hold power.
“The president could do whatever he wants without fear of losing office or being barred from office again,” the aide said. “That cannot be.”
This story is developing…