Impeaching a former official rests on a shaky precedent
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A few weeks ago, I received a press inquiry about the constitutionality of impeaching a former federal official for offenses committed while in office. In checking summaries of impeachment precedents cited in House Practice, the answer seemed quite clear: “The House and Senate have the power to impeach and try an accused official who has resigned.” (ch. 27, sec. 2). 

A host of constitutional law experts are cited in support of that view in a Nov. 20, 2019, Congressional Research Service report on “Impeachment and the Constitution.” Countless more experts have weighed-in with op-eds on both sides of the issue in the run-up to the second impeachment and trial of President TrumpDonald TrumpMaria Bartiromo defends reporting: 'Keep trashing me, I'll keep telling the truth' The Memo: The center strikes back Republicans eye Nashville crack-up to gain House seat MORE this past month.

The most prominent example of a former government official being impeached is Secretary of War William W. Belknap in 1876. He resigned as head of the war department on March 2, 1876, just hours before the House voted unanimously to adopt five articles of impeachment against him on bribery charges.

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Beginning on April 5, the Senate proceeded with the trial. Belknap argued that because he was now a private “citizen of the United States and the state of Iowa,” and no longer a federal official, the Senate had no jurisdiction to try him. After considerable back and forth, the Senate voted 37 to 29 on May 29 that it did have jurisdiction. Just after that vote, however, Sen. Isaac Christiancy of Michigan offered a resolution that in effect said since a two-thirds vote is needed to convict, and over one-third of the senators had already pronounced that they had no authority to try and adjudge a citizen holding no public office of trust, “it is inexpedient to proceed further in the case.” After some debate, the senator withdrew his motion, but his point had been made.

The trial dragged on for two more months, hearing from some 40 witnesses. Finally, on August 1, 1876, the Senate voted separately on each of the five articles, with 36 senators voting guilty on three of the articles and 35 and 37 senators on the other two. Twenty-five senators voted “not guilty” on all five of the articles. A total of 40 senators were required for the two-thirds vote to convict.

A deep-dive into the actual precedents on “The Trial of William W. Belknap” (Hinds’ Precedents, volume 3, chapter 77) reveals just how conflicted senators were about the proceedings. Before the final votes to convict, a resolution had been adopted to permit senators to speak for one-minute on the reason for their vote, and for their statements to be entered on the Journal. Two of the senators who voted guilty indicated they still thought the Senate did not have jurisdiction to try the case. Twenty-two of the senators who voted not guilty said it was for want of jurisdiction, while only three indicated it was based on the lack of evidence. Another senator, who had not voted, said he had abstained because he did not believe the Senate had jurisdiction to try the case.

In other words, 25 senators did not cast their final votes on whether they thought Belknap was guilty or not, but rather because they thought it was the wrong trial in the wrong place. At the time of the House impeachment proceeding, Belknap was already under indictment in a judicial court for the same crimes.

As the saying goes, history may not repeat itself, but sometimes it rhymes. The current imbroglio over whether the Senate has authority to try and convict former President Donald Trump is reminiscent of the Belknap trial. The current Senate held its first test vote on Jan. 26 on a motion to table a point of order by Sen. Rand PaulRandal (Rand) Howard PaulFauci says he puts 'very little weight in the craziness of condemning me' Senate confirms Biden pick for No. 2 role at Interior Rand Paul does not support a national minimum wage increase — and it's important to understand why MORE (R-Ky.), that the trial of Donald Trump, now a private citizen, is unconstitutional and is not in order. The motion to table was adopted 55 to 45, with all but five Republican senators supporting his motion. It seems fairly clear from that there will be nowhere near the 17 Republicans votes needed to reach the 67 to convict (if all 50 Democrats vote guilty).

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There are certainly strong arguments to be made for holding the former president accountable for the violent insurrection loosed upon the Capitol on Jan. 6. I had favored a resolution of censure, even though it has no formal standing under the Constitution. Two such concurrent resolutions were introduced in the House, one by a Democrat and the other by a Republican, and House Minority Leader Kevin McCarthyKevin McCarthyGOP divided over bills targeting tech giants GOP increasingly balks at calling Jan. 6 an insurrection House Democrats' campaign arm raises almost million in May MORE (R-Calif.) expressed support for censure. It would be a clear rebuke of the former president for his recklessness in falsely claiming that the election was stolen and for inciting his supporters at the Jan. 6 rally to storm the Capitol. The Washington Post also originally called for censure in an editorial on Jan. 9, “Hold President Trump accountable,” though in a Jan. 27 editorial, it had a change of heart: “Ex-presidents can be impeached.”

Poisoning the well now with what is bound to be a vitriolic impeachment trial with an already predictable failed outcome does not bode well for the prospects of newly-inaugurated President Joe BidenJoe BidenExpanding child tax credit could lift 4 million children out of poverty: analysis Maria Bartiromo defends reporting: 'Keep trashing me, I'll keep telling the truth' The Memo: The center strikes back MORE’s bid to enact his ambitious legislative agenda. The president’s inaugural pleas for unity, reconciliation and bipartisan action on our nation’s pressing problems could well be dashed on the rocks of partisan infighting before the legislation even reaches the floor. The proverbial honeymoon afforded new presidents should not end with an annulment at the altar.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.