Congress Impeaches a Private Citizen
The Chief Justice won’t even preside over the thing
The United States Constitution is quite explicit regarding how impeachments of Presidents should be executed. The House has the sole power to impeach and the Senate has the sole power to convict or acquit. Easy enough. But it assumes the individual being impeached is a currently sitting President and not, as the case stands in January 2021, a private citizen.
This is some fairly muddled legal grounds Congress has embarked upon and they know it better than most. No few of them are lawyers and oddly enough, they’re proud of it. Washington D.C. truly is another planet.
Part of the bog of legalism being traversed includes the understanding Chief Justice Roberts won’t even preside over the trial. The U.S. Constitution is quite explicit the Chief Justice presides over impeachment trials of the United States President. But it says nothing about presiding over the impeachment of a former President. That is, a citizen now in private life.
Aside from mentioning the theatrics and optics and motivations involved in opposing or supporting the idea of an impeachment, I’ll just mention some issues arising from this process. Other than the framers’ use of the term chuse, of course. Those rascals.
The House of Representatives shall chuse their Speaker and other Officers;and shall have the sole Power of Impeachment.
The U.S. Constitution is, supposedly, the guide for determining how the legal process of this thing plays out. The impeachment originated and was voted upon in the House of Representatives, so no problems there. The individual impeached was the President of the United States, so no problems here. Supposedly, articles of impeachment as voted on by the House are being sent to the Senate as I write this, January 25th, 2021.
But these articles weren’t sent to the Senate at a time when the target, Donald Trump, was still the President. This is where things get odd and weird.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Donald Trump isn’t the President of the United States, any longer. As such, the Senate has determined a Democratic Senator should oversee the impeachment of the opposing party’s ex-President. Since impeachments of individuals who are not the President of the United States have historically been presided over by the President Pro Tempore (Latin meaning “for now” or “super temporary” or something similar) this isn’t viewed as particularly strange by anyone who is a Democrat. The inclusion of the Chief Justice of the Supreme Court is supposed to prevent this kind of thing, by making it not seem strange to anyone. Alas, the Chief Justice is not being included.
However, there is more to this than simply considering the ex-President as a non-Presidential impeachment. Non-Presidential impeachments can occur to officials who are in office, the majority of them have in fact. But Trump is a private citizen now, having left office and returned to private life without official and formal power. Also, without Twitter. He has influence still, unfortunately, but he is a private citizen. If the understanding is the President Pro Tempore presides over this trial rather than the Chief Justice, then they are recognizing Donald Trump is not the U.S. President and going ahead anyway.
You know, instead of approving COVID-19 relief bills or something similar.
So this whole thing raises two questions for me:
- Does a Senate impeachment trial for a President, whether sitting or otherwise, which does not have the Chief Justice presiding, possess any legitimacy? This one will get answered even if no one answers me.
- Does the Senate have the authority to convict during an impeachment of a private citizen? They’ve attempted it before, but they failed to convict then, as well. In 1870 the Senate failed to convict William W. Belknap of obvious abuses while he was in office. It seems standard law courts are intended for this kind of thing.
Leave it to Donald Trump to test the constraints of our limited government, even after leaving office. It’ll be interesting to watch this circus play out under the careful, partisan and partial tutelage of Patrick Leahy. It’ll also be interesting, if it occurs, to hear someone refer to President Donald Trump in impeachment proceedings which aren’t being overseen by the Chief Justice of the Supreme Court.
We may need to add a fourth ring to this circus.