Ahead of Trump’s upcoming impeachment trial, many in the GOP are stating that removing a former president from office is unconstitutional. Frankly, I find the argument extreme in the absurd but that’s just IMO. If a Senator votes no in the trial because of constitutionality, what can be done?
Typically, the Supreme Court determines constitutionality but in impeachment, there’s no case for them to decide. If Trump were to be convicted, maybe he could file a case at that point. But if he isn’t convicted, there’s nothing.
I’m just thinking out loud but it seems that a minority of Senators will be able to say that something is unconstitutional, vote accordingly, and there’s no way to prove that they’re wrong.
It would only matter if you could “prove that they’re wrong” if there was some process to overturn a Senator’s vote if it was given under incorrect pretenses, like there is a process to overturn a trial judge’s ruling on the law if it’s incorrect. Like, say the impeachment deity descends from the clouds and pronounces it constitutional to try a former president in the Senate. So what? Senators are allowed to be wrong.
At this point the only part that might be constitutionally tested is the disqualification after a successful impeachment removal. This could happen after the disqualified person attempts to regain office, is barred, and presses suit all the way to the supreme court. Or manages to swing a new office and some other party sues.
There is precedent for a former federal official to be impeached and prosecuted, in this case, William Belknap, Secretary of War from 1869-1876 for his role in the Trader Post scandal. He was acquitted by the Senate.
Lengthy article, but here’s a summation.
Of course, Trump was impeached while still president, but precedent allows for him to be prosecuted in the Senate.
I realize that we tend to associate constitutionality with the Supreme Court because they’re the ones who openly invoke it when they hand down decisions.
But a Senator or a Congressman can vote against a bill they feel is unconstitutional without having to be told it’s so by the Supreme Court. And a President can veto a bill because he feels it’s unconstitutional.
Suppose that I’m a juror and the defendant is charged with puffery. During deliberations, I declare that I’m voting not guilty because I believe that puffery laws are unconstitutional. This however is demonstrably false because the Supreme Court has consistently ruled that laws against puffery are in fact constitutional. Is there any way that we can get to the Supreme Court making a similar ruling concerning impeachment of a former government official?
It’s not the Supreme Court’s job. The Senate has the “sole Power to try all Impeachments.” Resolving legal questions is part of what a trial is for, and the Supreme Court has found that “sole power” means the Senate’s decisions in an impeachment trial are simply not subject to appeal, so I think they’d likely bail out of any attempt to get dragged into this kind of question (in any case, they also can’t take hypothetical questions, so they’d only be answering after the trial, as you say in the OP).
The Senate basically is the Supreme Court here. Some constitutional questions aren’t really legal questions because the legal system isn’t equipped to answer them.
Note that the Senate, in the case of an impeachment trial, isn’t a jury. This is a point Chief Justice Roberts explicitly emphasized during President Trump’s first trial. The Senate trial is a quasi-judicial process, but it isn’t actually a jury trial. The concept of “jury nullification” isn’t applicable. Unlike a trial jury, the Senate sets its own rules of procedure, standards of evidence, and so forth.
Just as the House is free to define “high crimes and misdemeanors” however it wishes in impeaching a federal officer, the Senate is free to decide to convict or not on any grounds it wishes, as are individual Senators.
Since being convicted by the senate also has a component to bar the person from ever holding office in the future it would seem perfectly reasonable to be able to do all of this after a president leaves office. Otherwise you are saying that any malfeasance found after they were in office can not be dealt with. You catch and punish them ONLY while in office or not at all which is ridiculous.
Barring from future office is not a penalty that the Senate has to impose, if they convict. They can find someone guilty, remove them, and stop there. They could find a person guilty, but then impose no penalty at all. They could even bar someone from future office without removing them from their current office, though I can’t think of any reason why they’d do that.
Impeachment doesn’t. Conviction might strip a former president of his pension, if the Senate chooses to do so. Upon conviction, the Senate can but does not have to, impose as a penalty “disqualification to hold and enjoy any office of honor, trust or profit under the United States”, which would potentially include a pension.
The Secret Service protection question is murky, as I understand it. I don’t think the law extending Secret Service protection to former Presidents directly addresses this issue. It would probably count as being a benefit of the office, and therefore could be stripped if the Senate chose to do so, but this is all legally unexplored territory.
Apologies for not having read about the various possible precedent. But even barring that, I’m not sure how the OP would be different from any case of initial impression. The only way to find out is to try. And if it is allowed/upheld - it is Constitutional. If it is rejected, it is not. There is no objective standard.
Are former presidents entitled to national security briefings? Can the next president stop those? Or does the former president need to be impeached and convicted to stop such briefings?