On impeachment, Republican senators are misinterpreting the Constitution

The 45 senators who called the pending impeachment trial unconstitutional are wrong

By Frederick Gedicks, Contributor Feb 5, 2021, 12:35pm MST

Forty-five Republican senators recently ignored the original meaning of the impeachment clauses of the Constitution to avoid offending a former but still powerful president. Their fig leaf is the weak claim that impeachment trials of former presidents are unconstitutional. As self-proclaimed constitutionalists, they should know better.

The constitutional text is simple and straightforward: “Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (Art. I, § 3, cl. 7). In short, the harshest punishment the Senate may impose on an impeached and convicted president is removal from office and disqualification from any future office. Disqualification alone obviously does not “extend further than” the punishment limit set by the Constitution, because it is only one punishment when the Constitution authorizes the imposition of two at once.

Suppose you tell your child, “You may not play with anyone except John and Jane.” It would be silly to read this instruction to mean, “You must play with both John and Jane,” and even sillier, “If John can’t play, you can’t play with Jane, either.” Yet, this is the interpretation most Senate Republicans are forcing onto the Constitution, insisting that it requires the Senate to remove a president before it may disqualify him from future office.

This is not what the framers wrote. The text plainly states that the harshest punishment the Senate may impose is the combination of removal and disqualification. This leaves the Senate free to impose the lesser punishment of one or the other.

This commonsense understanding of removal and disqualification was held by the framers and others when the Constitution was adopted in the late 1780s. Alexander Hamilton declared in The Federalist that the Constitution’s model for impeachment was the impeachment procedure followed by the British Parliament in Great Britain (no. 65). Keith Whittington, professor of politics at Princeton and one of the leading original-meaning scholars in the U.S., recently pointed out that “Parliament impeached only two men during the 18th century, both former officers.” What’s more, “no U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers.”

The Senate applied this understanding in the impeachment trials of two former federal officers. In 1797 — less than a decade after the Constitution was ratified — the Senate held an impeachment trial for former Sen. William Blount despite having already expelled him from the Senate. (He was acquitted because a majority thought impeachment the wrong remedy.) In 1876, the Senate held an impeachment trial for former Secretary of War William Belknap despite his having resigned before the process even began. (A majority of the Senate voted to convict but fell short of the required two-thirds.)

The former president is accused of violating his constitutional oath to “preserve, protect, and defend the Constitution of the United States” (Art. II, § 1, cl. 8), by subverting a lawful election with baseless claims of fraud, and then inciting an insurrection that interrupted the counting of electoral votes and threatened Congress and his own vice president.

Senators also swear an oath, to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance” to the Constitution.” Oaths of office remain sacred, which is why presidents, vice presidents and members of Congress swear them on holy scriptures and vow to fulfill them, “So help me God.”

The problem for Republican senators is that the former president remains a power within their party and is already plotting the demise of those who have crossed him. This problem is not a challenge to the Constitution, but to Republican courage and integrity. Republican senators are acting out of political self-interest, not constitutional commitment, when they hide behind a weak interpretation of the Constitution that contradicts its original meaning.

If Republican senators are to truly honor their oaths of office, they will set their reelection prospects aside and adhere to the Constitution’s plain meaning, by honestly judging whether the former president deserves to be disqualified from future office.

Frederick Mark Gedicks teaches constitutional law at Brigham Young University J. Reuben Clark Law School. His views are his own.