By Prof Upendra Baxi
The term of the most mercurial and divisive President of the United States (POTUS), Donald J Trump, is now hanging by a thread in the Senate even when it is almost universally agreed that whatsoever be the scope of his constitutional duties, “inciting insurrection” is certainly not one of them.
The single paragraph indictment, agreed to a majority of the House of Representatives of the US Congress, is now before the Senate and slated to be heard a day after the installation of Joe Biden as the 46th POTUS. President Trump unsuccessfully maintained that the election was vitiated by “fraud”, but this plea was not judicially accepted, even by SCOTUS (Supreme Court of United States). However, his argument seems to have been accepted by his party, with 197 Republicans voting against the motion and ten Republicans and 228 Democrats voting for impeachment.
The assorted but nationwide group of loyal followers who stormed the Congress, included many with violent intent and method, with some being the actual embodiments of such violence that resulted in many fatalities and invasion and destruction of some state property. What is more, they continue to threaten in the near future all those who do not subscribe to the accusation of “stolen election”. The Senate will now have to hold a “trial” which proves or disproves by a two-thirds majority this indictment by the House.
This a peculiarly poignant context has called for an unusual course of action and historic the second impeachment of the same POTUS. The first impeachment was voted down; the Senate acquitted Trump on February 5, 2020, of both the charges: Senators voted 52-48 to acquit him on abuse of power, and 53-47 for obstruction of the Congress. Senator Mitt Romney was the only Republican to vote to convict him on count of abuse of power.
Though the Senate and the House both were Republican-majority at the time of the first impeachment, the Democrats have now captured the commanding heights in the House of Representatives, and a majority of the Senate. But they require support from 16 Republican senators to obtain the 2/3rd majority. It is in this context that debate has again started, and will be reinforced by proceedings on the issue of whether the Senate impeachment trial is a legal one, a political one or even a political-legal one.
There is no question that the trial has to be conducted fairly and the rules under which the trial is held are fair; that may be a prime reason perhaps why the Chief Justice of the US presides over it, But whether it must fully follow the due norms and standards of due process of law remains contentious.
There are at least two distinctive views of impeachment. Professor Alan Dershowitz regards it as basically a judicial process—1 and those who regard it as a mixed affair. Professor Brian Owsley, for example, regards it at best a politico-legal process. The SCOTUS observed in Nixon vs Fitzgerald, 457 U.S. 731, 757 in 1982 that impeachment is a constitutional remedy for misconduct and removal of POTUS is not held to signify that all requirements of the Constitution are entailed in the impeachment proceedings. The American Constitution does not expressly characterize impeachment either way. But the conclusion of concussion a fairly exhaustive study says that “… even if due process is inapplicable to impeachment procedures, one can still question whether the process was fair.”2 Does this mean, assuming that the Senate comes to an affirmative resolution, that the matter may have to be finally decided by SCOTUS? In that event, how may the “conservative” Justices—particularly those justices especially appointed during the Trump regime decide the matter? It is rather difficult to imagine the SCOTUS to privilege an overlap of constitutional morality with a political ideology, manifesting a towering loyalty to a neo-conservative/far right cause.
The Senate, in any event, has to face the issue: whether a person who has relinquished the office of POTUS can be impeached at all? The objective of impeachment is clear: it is to render Trump ineligible for holding any public office henceforth. Article II, Section 4 of the Constitution has this consequence in view: “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 Misdemeanours” and Article I Section 3 says: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States.”
These provisions would seem to conclude the matter. Yet, it can be argued forcefully that these apply to impeached public officials only during the period they hold public office. It is out of bounds to subject citizens who hold no public office as impeachable. And the disability clause (Section 3 of the Fourteenth Amendment confers the power regarding “insurrection”, a ground of disqualification for any officer who may have “previously taken oath of office… as an executive or judicial member” of the Union or States. The constitution also allows the Congress “by a vote of two-thirds of each House, to remove such disability”.
The strongest defender of a fundamentalist position is Professor Alan Dershowitz who recently reiterated several times over TV shows and interviews the position that it will be unconstitutional to impeach a POTUS who has left the office or whose term is over. According to him, “the subject, the object, the propose” of impeachment is solely to “remove the President”. He cites the precedent of President Richard Nixon who resigned in “anticipation of impeachment” and there was no effort in the Congress to pursue this measure. A second precedent takes us back to 1876 where there was a “failed effort” to remove the Secretary of War by impeachment, but the Senate held, on a vote on merits, that it had no jurisdiction over a non-incumbent person.
On the other hand, Professor Michael J Gerhardt has recently argued that the Constitution wisely and well did not specify a timing for impeachment, for to do so would be to allow officials an impunity from facing any unlawful or unconstitutional act, and factually amount to a grant of absolute immunity (upon the end of the term of office) from any accountability. Further, any absence of post-presidential impeachment would signify an eligibility to re-contest elections.
True, “this has never happened before in American history”, but “then no president until Trump spent his final days in office doing the kind of damage he has done—attacking the legitimacy of America’s democratic institutions and expressing his ‘love’ for his followers who charged into Congress with guns and destroyed federal property in their quest to find his enemies and hold them accountable for not overturning the election results”. He insists (and rightly so,) that being “president is not a safe harbour from political and legal accountability”.3 What if investigations reveal that the president had sold pardons or indulged in actions which amount to a crime like bribery, or acts of systematic governance corruption? Can the person not be impeached after laying down the office for crimes committed during the incumbency of the office as POTUS?
But we must always recall in the American situation that “all it takes to block impeachment is enough support to sway thirty-four senators”. And given “the Senate’s unrepresentative composition, which gives small states an outsized voice in government, a president backed by less than 20 percent of registered voters can become practically immune to removal”4—hardly a democratic consequence!
Ultimately, as a practical affair, the pace at which the Senate proceeds on impeachment depends on Senator Mitch McConnell, the leader of the Republican Party, who is known for his slow decision-making. He has now proposed a schedule under which the House of Representative will transmit the article of impeachment next week and trial proceedings (after giving due time to the defence and prosecution team) may probably begin in mid-February. [His critic Kevin D Williamson writes even before this communiqué (in the National Review, though I find this polemic unfair) that: “Senator McConnell is a true genius when it comes to delays, an artist of adjournment, a Picasso of Procrastination, a Homer of holding patterns, a Leonardo of loitering, a Rembrandt of retardation—yes, I can keep going! — let’s just say that he is the Machiavelli of not getting stuff done”].
And as a matter of principle, the fate of American democracy lies in whatever democratic future these sixteen folks may hold. All that they have to do is to raise their finger when the motion is put to vote! Democracy is, all said and done, a form of governance by numbers. When the claims of justice combat raw political power, representation of “We” the People fades into almost total insignificance.
All said and done, it is a poignant story of a moving finger; Omar Khayyam wrote in 1859:
“The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.”
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1 See, his interview on BBC Hard Talk [https://www.bbc.co.uk/programmes/w3csy995]
2 See Brian Owsley, “Due Process and the Impeachment of President Donald Trump”, University of Illinois Law Review Online, 67- 80 at p. 80 (2020).
3 Michael J. Gerhardt, “The Constitution’s Option for Impeachment After a President Leaves Office”, Just Security, January 8, 2021. See also his, The Federal Impeachment Process: A Constitutional and Historical Analysis Chicago, The University of Chicago Press, 3rd Edn., 1999).
4See, Laurence Tribe and Joshua Matz, To End a Presidency: The Power of Impeachment, 173 (New York, Basic Books, 2018).
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