Trump’s lawyers, along with his acolytes in the House and Senate, would have us believe his second impeachment trial raises issues of constitutional proportion. Balderdash. They would have us believe that public officials cannot be impeached after leaving office. Balderdash. Aside from the fact that Trump was impeached while still in office (even while hiding in the White House) on January 13th, before Biden was sworn in, and thus was still in office, there are numerous examples of officials who were impeached after being out of office.
In 1797, Senator William Blount was named as a conspirator in assisting Great Britain to gain control of territory in Louisiana and Florida. Had the territories been ceded to France as part of Jefferson’s Louisiana Purchase the value of his land holdings there would have been severely diminished. He tried to leave town but finally complied with the Senate’s order to appear for questioning. The House, meanwhile voted to impeach him. Before a trial could begin, Blount was expelled from the Senate and he absconded to Tennessee. Even though he was no longer a Senator or “public official” the House began impeachment proceedings and sent articles to the Senate for trial. Blount was sent a summons in December of 1798, almost 18 months after being expelled from the Senate. He refused to appear and sent his attorneys instead. Ironically, he was not convicted and the Senate’s narrowly passed resolution on jurisdictional grounds has been interpreted that a Senator could not be impeached, not that he was no longer a public official.
Now you could argue, fine, but Blount’s impeachment is not relevant because it related to his status as a Senator. So let’s look at two more case I think are relevant: William Belknap and Walter Nixon.
Belknap was Grant’s Secretary of War who was accused of corruption. Before articles of impeachment could be voted on in the House, Belknap quickly resigned and left office. The House impeachment managers argued that departing from the office doesn’t excuse prior bad behavior and the Senate voted to accept that reasoning. However, perhaps in parallel to Trump’s situation, the Senate could not marshal enough Senators to vote for a conviction because even though high crimes and misdemeanors had been committed while in office, convicting him would be essentially meaningless and it would be pointless to convict.
The case of Walter NIxon also bears on the current issue. Nixon was the senior federal district court judge for the Southern District of Mississippi. In 1986, he was convicted of perjury and sentenced to five years in prison for lying in testimony before a federal grand jury. He was sentenced to prison, but refused to resign his office to which, as a federal judge, he had life tenure. He continued to collect his salary. The House impeached Nixon in 1989 on the corruption charges sending three articles to the Senate for trial. In the Senate, the case was reviewed by a special trial committee empaneled under Rule XI. Nixon sued claiming that as the trial was conducted by the special committee rather than the full Senate (the full Senate did vote to convict). Nixon sued and their decision is what makes the case pertinent. They ruled that impeachment proceedings and trials are the “sole” responsibility of the House and Senate and therefore non-justiciable. In other words, the House and Senate were the sole arbiters of what was or was not correct when it comes to impeachment. They make the rules and implement them.
One could argue that the House made a mistake in focusing on the criminal aspects of sedition and insurrection. Impeachment is not a criminal trial; it's a political one, a mechanism used to address malfeasance or the abuse of power. I wish they had added failure to perform his duties to the list. The picture of a president hunkering down and hiding in the White House while the Capitol was being stormed and vandalized threatening members of the House and Senate surely will go down as one of the greatest derelictions of duty by any President and Commander in Chief. That malfeasance alone would suggest conspiracy with the rioters if not just approval of their actions. Either would certainly warrant prevention from ever again serving in public office. As Trump is no longer in office the only other remedial option is disqualification from further office holding. (“Article I, section 3, clause 7 provides further that “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.””)
Resources: https://guides.loc.gov/federal-impeachment/william-belknap This is a terrific resource with links to the original documents from the proceedings.
Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late Secretary of War... , https://ia800709.us.archive.org/30/items/proceedingssena00housgoog/proceedingssena00housgoog.pdf Original record of the House hearings and Senate Trial. Alternately interesting and soporific.
https://www.law.cornell.edu/supremecourt/text/506/224 The full Supreme Court’s discussion and reasoning behind their decision with considerable historical background. Enlightening.
