Sometime soon, and perhaps this week, private citizen Donald Trump will become the first former president to face a Senate impeachment trial, almost a year to the day when, as President Trump, he was acquitted by the Senate on February 5, 2020, of two articles of impeachment—abuse of power and obstruction of justice.
On this second go-round, citizen Trump may not be so lucky. Unlike the first trial, when Sen. Mitt Romney (R-Ut), was the lone Republican to vote with Democrats to convict President Trump of committing impeachable offenses, expectations are growing for additional Republican votes to convict the 45th President of the United States. In this chapter of what will likely be a book — “Donald Trump and Impeachment" — the rationale for voting to convict an ex-president is to vote to “disqualify” him from ever holding any office of the United States again.
How rare is all of this? Consider that in the entire sweep of the 240- year history of the United States, that only three presidents—Andrew Johnson, Bill Clinton and Donald Trump-- have been impeached by the House of Representatives and faced trial in the US Senate. All three were acquitted by the Senate, meaning that in each trial, the constitutional requirement of two-thirds of Members present to convict and remove a president was not met.
In those three cases, the goal of House Managers was to persuade Senators to convict and remove the president from office. Since Trump is an ex-president and, obviously holds no office from which he can be removed, the goal this time is to vote by a two-thirds majority to convict him of a single article of impeachment—“Incitement to Insurrection.” If that threshold is satisfied, then it is virtually certain that a simple majority of Senators present will vote to impose the disqualification penalty on Trump.
How did we get here, and why did the framers of the Constitution insert into the Constitution Article I, Section 3, which grants to the Senate, the “Power to try all Impeachments.”
Readers will recall that after the insurrection which, the article of impeachment charges him with inciting, Democratic leaders urged Vice-President Mike Pence to invoke the 25th Amendment with the intent of removing President Trump from office. When Pence refused to engage in such an undertaking, House leaders followed through on their promise to impeach Trump which, with the support of 10 Republicans, including the third-ranking Republican leader, Rep. Liz Cheney (R-Wy), they promptly achieved.
The next step is for Speaker of the House Nancy Pelosi to formally transmit the article of impeachment, charging Trump with the commission of “high crimes and misdemeanors,” in an effort to overthrow the 2020 presidential election. The House document cites Trump’s infamous phone call to the Georgia Secretary of State, in which Trump urged the state official to “find” 11,870 votes –one more than President Joe Biden earned, which would overturn the election votes in Georgia. Trump’s solicitation of fraud and criminal conspiracy violated both state and federal criminal laws. The charging document also cites Trump’s baseless assertions that the election was fraudulent and rigged. For most, the charge that Trump had “incited insurrection” on January 6, 2021, is the most unpardonable of his facts, for insurrection, like treason, tears away at the integrity and very soul of the nation.
And so, here we are. Readers may recall Benjamin Franklin’s declaration, on the floor of the Constitutional Convention, that impeachment would be necessary to remove an errant or tyrannical president; otherwise, “there would be no recourse but to assassination.”
Delegates to the Constitutional Convention were keen students of history and were particularly well informed on matters of English legal history, which exerted significant influence on the work of the framers. Thus, drafters of the Impeachment Clause borrowed directly from the English categories, and provided that the president, civil officers and judges might be impeached for the commission of “treason, bribery and high crimes and misdemeanors.” They embraced the definitions of each category as well. Treason involves the act of taking up arms against the government, and aiding and abetting enemies of the United States, while bribery involves the act by a public official of accepting something of value in return for exercising official power toward illicit ends.
The category of “high crimes and misdemeanors” includes heinous acts constituting great political offenses against the nation such as subversion of the Constitution, usurpation of power, abuse of power, violation of one’s oath, betrayal and, more particularly, abuse of the pardon power.
Some skeptics scoff at the trial, given the fact that Trump’s term of office has expired. The specific rationale for convicting him is to permit a subsequent vote, by mere majority, to disqualify Trump from holding another office under the authority or trust of the United States, including the presidency.
America is confronted, here, with a grim reality, that of holding an ex-president accountable for inciting insurrection. If Trump is not convicted, and not disqualified from holding office, the message conveyed to him—and others holding high office—is that there is, in the United States Senate no real commitment to presidential accountability and the rule of law. In the future presidents, for example, might conduct themselves with impunity. The very concept of limited government will have no application to the presidency.
Such a message represents a direct repudiation of the framers aim of corralling presidential power and subordinating the president to the rule of law. It marks a rejection as well of James Madison’s warning in the Federalist Papers when he declared that the greatest challenge we face is that of persuading government to obey the Constitution and the law. Our very system depends on it, he observed. If governmental actors no longer believe it necessary to conduct themselves in accordance with the law, moreover, then ordinary citizens will learn, over time, that there is no particular duty to obey the law. Consider the impact of that downward spiral on our constitutional system, democratic values and the importance of law and order.
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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.