Also, while the availability of disqualification means the trial is not moot, there may be other constitutional impediments to trying a former officer.
For example, Article II, Sec. 4 provides, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
The Senate has acknowledged that this language limits their jurisdiction to try impeachments to the "President, Vice President," and "civil Officers of the United States": In 1797, Senator William Blount was impeached by the House. He was also expelled by the Senate. He filed two pleas seeking dismissal in the Senate: (1) He pled that the Senate lacked jurisdiction because a senator is not a "civil Officer of the United States;" and (2) he pled that the Senate lacked jurisdiction because he was expelled and thus was no longer a "civil Officer of the United States." The Senate dismissed the case by passing a resolution finding that it lacked jurisdiction, but it did not specify on which grounds it based that finding.
Also, there may be a question whether punishment of a former officer constitutes an unconstitutional bill of attainder. This is a rather arcane question.
Of course, whether any of this matters depends on whether a conviction is actually reviewable by a court. The Supreme Court held in Nixon v. United States that the question of whether the Senate actually conducted a "trial" is a nonjusticiable political question because, in part, of the Constitution's grant of the "sole power to try impeachments" to the Senate. But the procedural question of whether the Senate conducted a sufficient "trial" might be distinguished from the jurisdictional question of whether the person was actually subject to trial and impeachment, or the substantive question of whether grounds for impeachment have actually been set out in the articles of impeachment or proved at trial.
Ultimately, I doubt we'll get an answer to this question. There will probably be another impeachment trial which will take place after Trump leaves office, but I doubt Trump will be convicted.
To make one point clear, I personally think the Trump impeachment is just bullshit. However, I am considering whether the case can proceed to trial. An argument can be made against jurisdiction, but I doubt an argument that jurisdiction requires a two-thirds majority would succeed. In other words, the Dems will likely have their show trial, if they want it. It is unlikely to result in conviction.
IMPEACHMENT, Selected Materials, Committee on the Judiciary, House of Representatives, One Hundred Fifth Congress, Henry Hyde, Chairman, November 1998.
Committee Print, Ser. No. 10, 105th Congress, 2d Session, U.S. Government Printing Office.
It is a book of almost 1900 pages. ISBN 0-16-057703-9. I have a hard copy to this edition but no online link.
At pp. 1236-1238:
IIIThe last six articles of impeachment in this case mast faih if for no other reason, because they relate to a time when the respondent held the office of district judge of the United States. He may not be impeached for alleged offenses committed prior to January 31, 1911, when he ceased to be district judge by appointment to a different office.
Articles VII, VIII, IX, X, XI, and XII, and Article XIII in part, charge offenses alleged to have been committed by the respondent before he was appointed to his present position as circuit judge and assigned to duty on the Commerce Court. He was a district judge of the United States from March, 1901, until the 31st day of January, 1911.
No useful information on this subject can be obtained from the English precedents, because in England a private citizen could be impeached as well as officers of the Government.
In this country there have been two attempts to impeach persons who had ceased to be officers for acts done by them while they were officers. One of these cases was that of William Blount in 1798; the other that of William W. Belknap in 1876.
In Blount’s case when he was called upon to answer the articles he filed a plea which set up in substance these two defenses: (1) That a Senator is not impeachable, and (2) that he had ceased to be a Senator. (3 Hinds’ Precedents, 663.)
This double plea was sustained by the Senate by a vote of 14 to 11. (3 Hinds’ Precedents, 679.) There is nothing in the record of the case to enable us to determine whether all the 14 Senators who voted to sustain the plea did so because they held that a Senator is not impeachable, or because Blount was out of office at the time. And, of course, it may be that some voted to sustain the plea on one of those grounds and some on the other.
It will be seen that the managers in that case actually contended that in the United States, as in England, private persons may be impeached as well as officers. It is not thought necessary to consider that question, because that contention has never been made since it was made bv the managers in Blount’s case. Mr. Ingersoll, of counsel for Blount, said in the course of the argument that he would not contend that an officer might escape an impending impeachment by resigning his office for that purpose.
This admission of Mr. Ingersoll’s gave great comfort to the managers and some embarrassment to the counsel for the respondent in Belknap’s case. In that case the respondent filed a plea in which he averred:
“That this honorable court ought not to have or take further cognizance of the said articles of impeachment * * * because he says that before and at the time when the said House of Representatives ordered and directed that he, the said Belknap, should be impeached at the bar of the Senate, and at the time when the said articles of impeachment were exhibited and presented against him * * * he, the said Belknap, was not, nor hath he since been, nor is he now, an officer of the United States; but at the said times was,.ever since hath been, and now is, a private citizen of the United States and of the State of Iowa. (3 Hinds’ Precedents, 919.) ”To this plea the managers for the House of Representatives filed a replication, in which they set up: (1) That at the time the acts charged in the articles of impeachment were committed, Belknap was Secretary of War; and (2) that Belknap had resigned to escape impeachment, after he had learned that the House of Representatives, by its proper committee, had completed its investigation into his official conduct, and was considering the report it should make to the House upon the same. There were further pleadings, but those above stated set forth sufficiently what the issues were. (3 Hinds’ Precedents, 921.)
After much discussion the Senate determined to hear first the question of the sufficiency of the replication. After a long debate, it was decided, by a vote of 37 to 29, that Belknap was amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation before he was impeached. (3 Hinds’ Precedents, 964.)
Belknap was called upon to plead to the merits, but declined to do so on the ground, as set forth on the record by his counsel, that, as less than two-thirds of the Senate had sustained the jurisdiction, the respondent was entitled to be discharged, without further proceedings. (3 Hinds’ Precedents, 936—937.)
The Senate, however, went on and took evidence in the case, with the result that Belknap was acquitted. The vote on the several articles ranged from 35 to 37 for conviction. On each article 25 voted not guilty. Most of those who voted not guilty stated they did so because they believed the court was without jurisdiction, for the reason that the respondent had ceased to be a civil officer of the United States at the time he was impeached by the House of Representatives.
Hence, in Belknap’s case, as in Blount’s case, it will be seen that the final vote does not indicate that any of the Senators who voted “guilty” did so on the ground that one who has been a civil officer remains liable to impeachment as long as he lives, for acts done during the time he held the office. The evidence in the case showed that Belknap was advised at 10 o’clock of the morning of the day that he resigned, that the Judiciary Committee of the House was about to report a resolution recommending his impeachment. He hurried to the President, tendered his resignation, and had it accepted, a few hours only before the Judiciary Committee did present to the House the resolution recommending his impeachment. There was much controversy in the discussion of the case before the Senate by the managers and counsel, respectively, as to whether Belknap was an officer when the resolution of impeachment was presented to the House, on the theory that the law takes no notice of fractions of a day. But, aside from this, it was strenuously contended by the managers that even if the general rule be that an officer ceases to be subject to impeachment when he leaves the office, there should be an exception to that rule when the officer resigns for the very purpose of escaping impeachment.
It is impossible to determine what proportion of the Senators who voted against Belknap at the conclusion of the trial did so on the ground that he could not escape impeachment by resigning for that purpose, even if he would not be subject to impeachment had he not vacated the office in that way and for that purpose. In other words, the case is not a precedent for the proposition that one whose term of office has expired remains subject to impeachment during the whole of his life for acts done while he held the office.
When Manager Hoar was making his argument a Member of the Senate interrupted him and propounded the following question:
“There are no doubt several Members of the Senate who have been in past years civil officers of the United States. Are they liable to impeachment for an alleged act of guilt done in office?”
The manager did not flinch at this question, but said, as he was evidently required to say or abandon his contention: “The logic of my argument brings us to that result.”
It will be seen that the contention which was made on behalf of the House in Belknap’s case, and which we understand is maintained by the managers in the case at bar, is far-reaching. The present President of the United States at one time held the office of Solicitor General; at another time he was circuit judge of the United States; at another time he was governor of the Philippine Islands; at another time he was Secretary of War. Is it possible that le can now be the subject of impeachment for any act committed by him at the time he held either one of those offices? If so, he may be removed from his present office as President of the United States by a majority of the House and two-thirds of the Senate for alleged offenses charged to have been committed while he held any one of the other positions above mentioned.
And so of any other public man who has ever held office under the United States. It would seem that a contention which leads to such absurd results can not be sustained.
Side look at Trump’s political viability in 2024:
You may think this is far-fetched and whistling past the graveyard. But there are solid historical reasons for optimism. Let’s assume the Democrats’ basic premise is true, i.e. that Trump lost fair and square. Trump’s loss wasn’t terrible - a couple of hundred thousand votes short in the swing states that decide the White House race. This is in the face of two outlier events - a mass casualty pandemic and the resultant economic depression representing the worst downturn since the Great Depression.
The Democrats expected a complete sweep of the states, both at the White House and Congressional levels. FDR got a 413 electoral vote victory margin. Biden’s was 74. The 1932 House elections gave the Democrats a 196-seat margin, vs the ~12-seat margin they got in 2020. The 1932 Senate elections moved the Democrats to a 22-seat margin, vs the 1-seat margin (thanks to the VP tie breaker vote) they just got after the 2021 GA runoffs. This was a blue wave a toddler could safely paddle in, not a tsunami.
If you accept the Democratic premise that Trump lost by 7m votes, that’s a Biden popular vote margin of 4%. FDR’s victory margin over Hoover? 28%.
That’s why they’re trying to prevent Trump from running again. He’s no Herbert Hoover, whose political career was over the day the results came in. The Dems aren’t afraid Trump will get the 2024 GOP nomination and lose in the general. They’re worried that one hiccup or other before 2024 will send Trump back to the White House with commanding GOP majorities, but this time cleansed of the never-Trumpers who gave him so much trouble in his first term.
If Trump intends to run again, the interval from now until presidential season should* involve the installation of Republicans who support the Trump agenda in the midterms, and the removal of those who don’t. Bannon’s quest to populate elected offices with Trump supporters needs to resume, so that when Trump re-enters the White House, his agenda is ready to go from Day 1.
Sources:
https://en.wikipedia.org/wiki/1932_United_States_presidential_election
https://en.wikipedia.org/wiki/2020_United_States_presidential_election
https://en.wikipedia.org/wiki/1932_United_States_Senate_elections
https://en.wikipedia.org/wiki/2020_United_States_Senate_elections
https://en.wikipedia.org/wiki/1932_United_States_House_of_Representatives_elections
https://en.wikipedia.org/wiki/2020_United_States_House_of_Representatives_elections
You could also compare the numbers to those from the Spanish Flu election of 1920. Something similar happened, except this time, the incumbent Democrats lost big, with the GOP getting a 2/3 majority in the House. They would probably have gotten the same thing in the Senate, if every seat was up for grabs, rather than just 1/3. Point being that the pollsters were presumably modeling their blue wave poll results on 1920 and 1932, which were disastrous for the incumbents and resulted in ~300 and up electoral vote victory margins (i.e. winner - loser EV’s). Now that was a mandate. Whereas Biden had a ~70 EV margin, based on 1-2% popular vote margins in the swing states being litigated over. He’s skating on very thin ice.
The big question is obviously whether Trump will run. Given what we’ve seen of Trump’s decision-making process, maybe he himself doesn’t know the answer.