The Constitutionality of Trump’s Impeachment Trial Is Not ‘Crystal Clear’

“Preconstitutional practice in England and America included impeachment of former officials. Ten of the 12 state constitutions that were written before the U.S. Constitution was drafted addressed impeachment. In those state constitutions, Kalt notes, “late impeachment was either required, permitted, or not discussed, but was nowhere explicitly forbidden.”

Did the Framers mean to break from historical practice by limiting impeachment to current officials? If so, they never clearly expressed that intent.

The Constitution says “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.” It gives the House the “sole Power of Impeachment” and the Senate “the sole Power to try all Impeachments,” while limiting the penalties to removal from office and disqualification from future federal office.

This “poor drafting,” as Kalt describes it, leaves unresolved the question of whether the optional penalty of disqualification is enough to justify a Senate trial when the mandatory penalty of removal from office is no longer possible. As Turley sees it, “a private citizen is being called to the Senate to be tried for removal from an office that he does not hold.”

Kalt and many other scholars argue that the aims of accountability and deterrence would be frustrated if a president could avoid impeachment or trial by committing “high crimes and misdemeanors” toward the end of his term (as Trump is accused of doing) or by resigning (as Belknap and Richard Nixon did) after his misconduct comes to light. They also argue that disqualification is an important remedy when a president guilty of serious misconduct might plausibly make a comeback.

The “good faith” to which Turley aspires is hard to perceive in the arguments offered by most of Trump’s critics and defenders. As Stanford law professor Michael McConnell (who thinks Trump’s trial is constitutional) notes, “much of the discussion…consists of motivated reasoning on both sides that no doubt would be the opposite if partisan roles were reversed.””

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