Here’s How Trump’s Lawyers Should Have Explained Why an Ex-President Cannot Be Impeached

Members of the National Guard patrol at the U.S. Capitol in Washington on Feb. 9, 2021. Reuters/Joshua Roberts

Commentary

There’s a very strong argument that the Constitution does not permit impeachment of a former president. Unfortunately, President Donald Trump’s lawyers failed to present it.

Admittedly, there’s conflicting evidence on whether the Constitution permits late impeachment. The job of the prosecutors was to present the evidence in favor. Aside from a few slips, they did their job fairly well.

On the other hand, the job of the Trump defense team was to present the evidence against late impeachment. They had three opportunities to do this: in their written Answer, in their Trial Memorandum, and in their speeches to the Senate. By and large, they flunked.

Even though I’m undecided on late impeachment, it’s frustrating and painful for me to see a legal team drop the ball that way.

This article will lay out, step by step, the most important evidence against the constitutionality of late impeachment.

First step: Remember that the Constitution is a legal document—the “supreme Law of the Land.” We interpret a legal document by (1) reading its words, (2) using established guidelines for reading those words (lawyers call those guidelines “rules of construction”), and (3) studying the history behind the document.

Second step: Although lawyers have many rules of construction, one of the most important is this: If the document contains a list, then items on the list generally are included, but those not on the list are excluded.

We apply this rule every day in real life. Suppose my wife tells me to visit the supermarket and gives me a shopping list. The list reads as follows:

broccoli spinach cauliflower arugula

Unless there’s something really unusual going on, I know from the list that she’s not asking me to buy German chocolate cake. If I buy it anyway (as I might), it’s my own idea and not her instruction.

This rule—that items not on a list are excluded—was at least as important during the Founding Era as it is today. Participants in the 1787–1790 constitutional debates referred to this rule as a way to construe the document. The rule also played a big role during the debates over the Bill of Rights. It was so prominent that the Founders passed an entire constitutional amendment (the Ninth) to prevent it from applying in a particular case.

Third step: One reason the rule is so important to interpreting our Constitution is that the Constitution contains a lot of lists. The most famous is the document’s principal enumeration of the powers of Congress (Article I, Section 8). Every judge and constitutional lawyer understands that if a power is not on a constitutional list, it’s not there.

Fourth step: The Constitution’s impeachment provisions contain not one, but two lists: (1) the enumeration of reasons for which an officer may be impeached, and (2) who can be impeached.

The Constitution itemizes four reasons for impeachment: “Treason, Bribery, or other high Crimes and [high] Misdemeanors.” In Great Britain and under some of the early state constitutions, a legislative body could impeach for all sorts of reasons—even mere political disagreement. But everyone agrees the Constitution’s list of reasons is exclusive. That means any impeachment would be unconstitutional unless it was supported by guilt of treason, bribery, a high crime (felony), or a high misdemeanor (other serious crime).

Fifth step: The Constitution’s list of who can be impeached includes only three categories: “The President, Vice President and all civil Officers of the United States.”

In Great Britain, Parliament could impeach private citizens who had never held political office. Everyone understands that this is not true in the United States. Why? Because private citizens who have never held office are not on the Constitution’s list.

But wait: Former officers are not on the list, either. A former president isn’t the same as the current president. That’s the real reason Chief Justice Roberts is not presiding over this trial: The Constitution directs him to preside only when the president is tried, not a former president.

Are Trump’s prosecutors arguing that the Constitution’s list of impeachable persons simultaneously excludes and includes persons not mentioned? That it excludes private citizens who have not held office, but it includes private citizens who have held office? This seems to be a blatant contradiction.

Conclusion: According to the uniform way we interpret lists in the Constitution, former officers are not impeachable.

Sixth step: There are a number of subsidiary arguments that buttress that conclusion. Here they are:

• Contrary to the claim of the impeachment prosecutors, the Constitution doesn’t leave us without remedies against ex-officers. Rather, the Constitution explicitly mentions prosecution according to law.
• The Constitution has a general policy against certain kinds of legislative unfairness. It appears in several important sections, such as the ban on bills of attainder. This policy suggests we should interpret impeachment narrowly.
• Lead impeachment manager Rep. Jamie Raskin (D-Md.) said, “Every single state Constitution in the 1780s either specifically said that former officials could be impeached or were entirely consistent with the idea. In contrast, not a single state Constitution prohibited trials of former officials.”
  But Raskin is wrong. By a fair reading, the state constitutions of New York and Massachusetts limited impeachment to sitting officers. And the framers took the U.S. Constitution’s impeachment language largely from the New York and Massachusetts documents. They didn’t follow the constitutions of states such as Virginia, which permitted late impeachment.
• You can trace a process during the Founding Era by which Americans gradually made impeachment more narrow than it had been in Britain.

In sum: Although the Senate already has agreed to take jurisdiction of the Trump impeachment, that decision is not irrevocable. When senators vote to convict or acquit, let’s hope they weigh the considerable arguments against late impeachment.

Robert G. Natelson, a leading originalist scholar, is the author of “The Original Constitution: What It Actually Said and Meant” and several articles on impeachment. He is a former constitutional law professor and senior fellow in constitutional jurisprudence at the Independence Institute in Denver.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.