The Democrats' Planned Impeachment Trial of Donald Trump Is Clearly Unconstitutional

January 26, 2021 9:11am

Yesterday, the House of Representatives officially transmitted their Articles of Impeachment to the Senate. So what now?

Except in the jaundiced view of dishonest partisans, the Capitol riot was clearly not incited by Donald Trump. So that would be grounds for acquittal. But the process should never reach that point. Instead, the Senate should dismiss the charges without trial. Why? Because an impeachment trial at this point would be unconstitutional.

Impeachment is a process to remove officials from office. If they are no longer in office, they are private citizens who are not subject to impeachment. Article 2, Section 4 states "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." Since Donald Trump is no longer any of those, he is no more subject to an impeachment trial than I am.

An impeachment trial by the Senate would be based upon a legal fiction. It would be a process not authorized by the Constitution of the United States. But it wouldn't just be extraconstitutional; it would be UNconstitutional. And the Court should stop it.

Some so-called "legal experts" have been quoted in the propaganda press claiming the Supreme Court would refuse to rule on an impeachment question because the House of Representatives has "the sole power of impeachment" (Article 1, Section 2, Clause 5), and the Senate has "the sole power to try all impeachments" (Article 1, Section 3, Clause 6). While that hands-off approach has been precedent on other issues pertaining to Senate and House rules that have come before the Court, this situation is different because the rule that the Senate would use to try a former president contravenes the plain text of the Constitution.

How so? If the Senate adopted a rule that a bill could pass with 30% support, would the Supreme Court invalidate that rule? Or would they allow it to stand because Article 1, Section 5, Clause 2 says the Senate “may determine the rules of its proceedings”? Your answer to that question is the same answer as to why they should and would also toss any post-service impeachment proceedings.

In 1876, the House impeached President Grant's Secretary of War William Belknap after he left office. The Senate acquitted him. But had Belknap sued, the Court would certainly have invalidated the impeachment as unconstitutional.

Donald Trump should file such a lawsuit immediately.