News & Politics

Constitutional Scholar Questions Constitutionality of Second Trump Impeachment

Donald Trump faces a second impeachment trial after leaving office. (AP Photo/Manuel Balce Ceneta)

As the second impeachment trial of Donald Trump begins in the US Senate this week, significant questions remain as to the constitutionality of this action by congressional Democrats. Objections to the proceedings range from the precedent of trying a man in an impeachment trial who is now a private citizen, to the punishment should the Senate vote to convict, to whether the president received due process in the rushed vote on January 13 to submit one article of impeachment.

Recently, I invited Rob Natelson on my podcast, Behind the Curtain, to discuss these issues. Natelson, a former law professor, heads up the Constitutional Studies Center for the Independence Institute.

“There are a whole lot of flaws or problems in that process that I think ultimately will derail it,” Natelson told me. “One of the hurdles they’ve got, it’s by no means clear you can impeach and convict somebody who’s no longer in office. If you turn to the founding era record, you find that all the times in which the Framers of the Constitution or the ratifiers of the Constitution talked about impeachment, it was always in terms of removing somebody from office. So you can’t point to anything that says they understood that we can use it after the president has left office. Then you go to the wording of the Constitution itself, and the wording of the Constitution seems to assume that the person being impeached is in office.”

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That doesn’t necessarily close the door, according to Natelson, it simply has no precedent. The lack of judicial process, however, could pose a serious problem for the Democrats. “You have the provision in the Constitution that carries out an underlying policy of the document, and that’s the prohibition against either states or Congress passing Bills of Attainder. Bills of Attainder are legislation declaring somebody’s guilty of a crime without judicial process punishing him.”

Natelson says the idea that you could impeach somebody who’s left office, with a new majority hostile to a former president or former secretary of state imposing disqualification for future office, seems to be in conflict with this constitutional policy of bills of attainder.

Further complicating the chances of the Democrats to convict is the vote required. “This brings us to the next hurdle, and that’s the 2/3 majority. It takes two-thirds in the Senate to convict. You’re going to need 16 Republicans and unanimity among the Democrats. “We already know at least one Democrat is dubious about this project. It’s going to be difficult to get that majority to impeach.”

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“There are also certain other legal problems,” Natelson said. “And then there are some factual problems or hurdles which lead me to believe that the impeachment is not going to end in conviction.”

After the first impeachment trial, Natelson did some more research. “Back in the original Trump impeachment,”, he said, “the question of whether the president had committed impeachable offenses arose. Naturally, the Constitution says that a president can be impeached for treason. Well, there was no treason in the phone call that President Trump made. Bribery, that idea was dropped pretty quickly. So, high crimes. There was no felony and high misdemeanors. So the argument in the first impeachment trial was that he committed a high misdemeanor and many many people including myself at that time believed that something less than a crime could be a high misdemeanor, say a breach of trust or some other kind of conduct.”

Natelson said shortly after the impeachment hearing ended, he went into founding-era materials that are really important in proving understanding. “It had never been examined before,” he said, “and what I found Is that high misdemeanor was actually a specific term of art in 18th century law. It meant serious crime not rising to the level of capital punishment. So, assault, for example, attempted murder, bribery. These are high misdemeanors.”

He thinks the Democrats learned their lesson from the first impeachment. “I think the Democrats have taken that to heart,” Natelson said, “and they have alleged a crime of sedition. However, you run into the factual problem. There’s a timing problem. There’s a geography problem. We know, for example, that the violence started before he is speech ended. We know that in the speech, he specifically urged his supporters to remain peaceful. He said we should peacefully and patriotically march down Pennsylvania Avenue. That’s left out in the article of impeachment. Then there’s the geography problem. The distance from where the president was speaking to the Capitol, according to Google Maps, is 1.42 miles. So that means that people who heard the speech and got inflamed would then have to walk nearly a mile and a half down Pennsylvania Avenue remaining inflamed all that time—a half an hour or more. The final factual part, the article of impeachment cites the conversation with the secretary of state of Georgia saying that President Trump wanted to get him to find the votes. Well, I read that transcript of that call, and Trump wasn’t talking about making up votes. He was asking, begging the secretary of state to investigate the returns. He was giving examples of all the anomalies in Georgia and he’s saying find the truth, not make up the vote.”

The bottom line for Natelson is that Trump’s actions on January 6 don’t appear to have incited the riot at the Capitol, and therefore don’t rise to the level of sedition, or any other impeachable offense. Given those conclusions, it looks like the Senate will have a difficult time getting to the two-thirds majority to vote for conviction. Even if they do, Natelson believes, and they try to bar him from running for office in the future, the courts may take a dim view of the proceedings.

Jeff Reynolds is the author of the book, “Behind the Curtain: Inside the Network of Progressive Billionaires and Their Campaign to Undermine Democracy,” available at www.WhoOwnsTheDems.com. Jeff hosts a podcast at anchor.fm/BehindTheCurtain. You can follow him on Twitter @ChargerJeff, and on Gab at @RealJeffReynolds.

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