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Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
University of Miami School of Law
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I’d be curious to read your thoughts on C.J. Roberts skipping the impeachment proceeding. He skipped out on what might be the only Constitutional duty of his office (“When the President of the United States is tried, the Chief Justice shall preside”). It seems to me that this is a signal that he believes that the impeachment trial was unconstitutional.
I suppose the argument that he’d make is something like, the Constitution allows for the impeachment trial of “civil Officers” and requires the CJ to preside over the trial when the “civil Officer” in question is the president. Joe Biden is the president – not Donald Trump, so the CJ is not required to preside. On that subject, if Trump isn’t president, and doesn’t hold any other office either, he’s not a “civil Officer” and there is no Constitutional provision for the impeachment and trial of office-less Donald Trump.
Skipping the trial would let him justify not recusing himself from deciding the issue if Trump would have been convicted and the matter litigated before the Supreme Court.
It seems to me like Mitch McConnel wrapped this up with a bow when he postponed trial until after Biden was sworn in.
I don’t have any trouble buying the theory that both current and former “civil officers” can be impeached (i.e. no “January exception”), with the only difference being remedy — you can’t remove someone who already quit or left the job. In any case Trump was impeached while he was a ‘civil officer’ in office, so that’s not an issue.
I see “impeachment” and “trial” as quite separate things – with the functions assigned to different houses of Congress. So it seems very plausible that the CJ presiding clause applies if and only if the person being tried is President at the time of the trial. So I think Roberts’s choice is very defensible, and doesn’t imply anything about the validity of the trial after the civil officer is no longer in office.
But see that’s the problem, it’s all just theorizing. The Constitution is plain in its wording, but arguably, there are not enough words to cover all use cases. So then a bunch of law professors, and somehow NOT SCOTUS get together and start making theories about what the founders might have been thinking when they didn’t account for everything modern politics could come up with. And the theory is NEVER that the Constitution might have said everything it was meant to say on a subject. No surprise…
Impeachment, as an act, makes little sense unless tied to a resulting act. Up until now, we’ve been satisfied that impeachment, having the goal of removal, can be followed by a trial and removal on conviction, or it can be followed by the de facto resolution of resignation. Every impeachment has really followed that goal. Desperate spinning about some previous impeachment’s aside, that is how they have worked. But since it was about Trump, and Dems were REALLY mad, we just make up a new use case to do the political equivalent of trying a corpse. Parliament could do things like that, and has, but that is not our government, so you cannot cite what Parliament could do as precedent any time it’s not in our Constitution.
So let’s say that they convicted the corpse and barred him from running again. Can they really make that stick? Does the Federal Government have the power to determine who can or cannot run for President? Something the Constitution otherwise largely leaves up to the States and the People? And assuming that it can, can it be done without far more due process than two sets of lawyers presenting an opinion, then a vote? Does Procedural Due Process require more than what we saw? I would say that given the other things Administrative Law has made come to pass regarding Due Process and Government (as you well know), something far more akin to a real trial, with real evidentiary standards, some sort of witness(es), and a judge would be minimally required to allow one group of Government to just DECIDE that someone has a right of citizenship removed. (Remember, a lot of things have changed in how we view Constitutional rights, especially over the last century. You can just take them away by fiat. Again, as you know.)
Whatever the truth might be, this is exactly the case where SCOTUS should have been consulted and followed first. As they have claimed the right to determine the Constitution’s meaning, and the Constitution was obviously not satisfactorily clear here, J. Roberts had a DUTY to explain why he chose, assuming he did, not to preside over a trial of a President. There is no Constitutional office of Ex-President, you are either the President, or you are a private citizen. As he was never in any other public office, this was an impeachment either of a President (the trial dates back to the date of the crime, like in the real trial world), in which case the CJ had a Constitutional DUTY, or it was an impeachment of a private citizen (the trial does not date back to the time of the crime), in which case SCOTUS should have stopped it as Unconstitutional ab initio. In either case, Roberts had a duty to speak up and explain, I don’t think we should all be fine with his silence.
Maybe Roberts was silent because he knows it was all meaningless political theater and that if Trump was convicted and barred, it would not necessarily be binding anyway, so it would all wind up in front of him in the end.
In any case, ignoring what either side might have been mad about, this impeachment and trial raised far more questions than we should be comfortable with.
The Supreme Court doesn’t give advisory opinions, so in the absence of a case or controversy brought by a party that had standing (hard to think of any such person other Trump himself, who I’m sure had no interest in the Chief presiding), it couldn’t rule on this issue. (If the Senate had convicted, then Trump could perhaps have raised the issue in an attack on his disqualification for future office.)
As I said before, impeachment and trial are separate things, so even if you think (I’d say wrongly) that a former official cannot be impeached (and the Hasting precedent is not some obscure thing plucked from the history books, it was the major scandal of its times, contemporary with the Framing), it in no way follows that an official impeached while in office cannot be tried after he leaves the office.
More generally, I completely reject your explicit and implicit ideas about how to interpret constitutional text. It is, as Chief Justice Marshall reminds us, a Constitution we are expounding, not a code. There is a lot of virtue to a briefer, somewhat more flexible text, open to interpretations to suit the times. That’s not costless, but I think it’s better than something 400 pages long.
I am well aware of SCOTUS limitation of jurisdiction, but in this case, since the Constitution demands that Roberts preside, he has a duty, or at least his Court does, to explain why he refused, assuming he did. There is no office of exPresident in the Constitution. An ex-President is never given any duties or office in it. He did not resign to avoid impeachment and trial, which would have happened during his tenure (Belnap). SCOTUS too often hides from its responsibilities by citing various jurisdictional frameworks that are essentially made up for convenience anyway. I think here, the Constitutional text demanded Roberts preside for the trial to be valid. The fact that he didn’t demands explaining.
Parliamentary impeachment’s should be taken with a huge caveat. They simply have/had a different source of power. At the time of the framing, Parliament could try anyone for pretty much anything, and it was unreviewable, even by the King. If anything, it would be more reasonable to assume the framers were against the expansive powers of Parliament, not trying to emulate them. You might look at Lord Strafford’s impeachment.
(Frankly, an honest look at all American impeachments shows that most, almost all, could have been more about political retribution than actual offenses that concerned anyone. Impeachment is, and always has been, a political tool, not a safeguard.)
Of course impeachment implies a trial is to come. Why wouldn’t it? Seriously? That would be like prosecutors indicting people right and left, just to warn them, but never holding trials, so that’s OK. That is an absurd idea. One is meant to follow the other, and they are a pair. The fact that the trial doesn’t always happen is simply another issue, just as criminal trials don’t always happen after indictment. But indictments always imply a trial is coming. Maybe this is one of the many things that makes more sense if you remember that the Senate was not originally popularly elected?
Again, Due Process, something the framers DID have a completely different perspective on, is now in play like it never was in the 18th or 19th centuries. I’m not sure Congress has the power, even if they claim it, even if the Constitution might imply it, to take away the right of a private citizen (which is all Trump is after Jan 20) to run for President, assuming me meets the other Constitutional and state standards. Certainly not on the basis of something so un-trial like as that impeachment was. You’re in Admin law. You know the cases. Does Goldberg v. Kelly, etc. have anything to say in all this? I know it’s easy to fallback on “that’s just the way things are” but Due Process has added a whole new way of interpreting law that the framers just had no idea about, and maybe never intended. Does impeachment in the Constitution just serve as a little legal island, unaltered by anything but the precedent of previous impeachments? Or does the overall legal framework of the Federal legal system inform it? If the latter, why not Due Process? Do you think two sets of lawyers, cherry picking facts, giving what amounted to little more than unchallenged spun opinion, to a “jury” that openly stated that its mind was already made up anyway, presided over by a “judge” that also stated that, and also got a vote, satisfies any notion of Due Process in the 21st century?
I do not. I think it obviously does not. It should be obvious to you. This has nothing to do with whether impeachment was proper, and everything to do with whether it could be binding for ANYTHING other than removing him from office, were he still in it. The lack of basic Due Process would bar Congress from taking his right as an American Citizen to run again.
From an Admin law geek, I’d be interested in hearing about Due Process from you. Certainly going by your last paragraph above, you would agree that there are things not expressly stated in the small amount of Constitutional impeachment text that would apply. Due process applies all over the Constitution now in ways the framers never probably imagined. Why not here?
(And to be clear, I am not someone who thinks only the text as written matters. I agree with Marshall on this. Sorry if I gave you another impression.)
I think it’s a bad legal structure to agree with the outcome of a bad and flawed process, just because you like it.
I have deadlines, so no time to respond in depth. One thing for now: I think due process probably (maybe sadly) is almost certainly the wrong frame as regards what is more properly framed as akin to a question of jurisdiction when it comes to the power to impeach and/or try.
One might think DP would/should apply to the conduct of the trial (including who presides), an issue that could come up under collateral attack if the defendant were to lose. Absent egregious behavior by the Senate, it would be a tough case for many reasons. Among them: 1) each house gets to make its own rules of procedure (so arguably that’s all the process ‘due’); 2) Despite Justice Stevens’s best efforts, the SCT clearly rejected his attempt to craft some ‘due process of lawmaking’ standards.
Yes, a future impeached person could argue that the above is all about legislative functions, or that the presiding officer issue is different since the Constitution speaks to it. These would I think lose, but the presiding officer claim is probably the least weak claim in the bundle.
On other matters they could argue that the Senate is not acting legislatively when it tries an impeachment [an even harder but maybe not impossible claim as regards the House’s impeachment itself], and while these are not laughable claims, I have very little doubt they would fail unless the ‘process’ consisted of a coin flip (that was Justice Stevens’s example).
Well, as a practical matter, a challenge would most likely fail simply because those in charge would assure that it did. I’m not being snarky about this at all. A Court would bend over backwards to accept any reasonable explanation Congress would provide justifying its procedures. Probably see a heavy dose of “this is a political question” to boot.
Government always keeps a proverbial second set of books on these sorts of things. I suspect that Roberts did not preside because he knew it was all a farce, but he also knew it made no difference whether he attended or not. Congress could rationalize whatever it wanted to do, and since they make the rules, they are pretty much whatever they want from moment to moment anyway.
I do believe it is fundamentally wrong to proceed with an impeachment of a private citizen who holds no office, not could but for resignation. This is very bad precedent which expands the Constitutional impeachment jurisdiction limits to wherever Congress decides on the fly to do so. There is no office under the Constitution of ex-President. Ignoring that fact does not make this all justified.
I do believe Due Process matters despite this. I do not believe that impeachment operates in a DP-free zone, subject only to Congress. I think the last few decades of Admin law have a lot to say about all this. I really would look forward to an analysis of why or why not, if you get the time.
BTW your point is well taken that a Court would see DP being satisfied by whatever Congress holds as its proper process.
I just don’t think that the process in Congress was at all proper from a more objective point of view. Again though, they just use their second set of books…