The House Impeachment Managers' Brief Undercuts Democracy | Opinion

The House impeachment mangers, in their brief supporting the conviction of former president Trump, make several dangerous arguments. They broadly assert that any former official can be impeached and disqualified from holding future office regardless of how long ago he or she committed allegedly impeachable offenses. The brief argues that there is "no statute of limitations" and that impeachment of even former public officials can go forward "whenever their abuse of power may have occurred or been discovered." It says the Constitution has "no restriction based on whether a person is still in office." According to this view, the House and the Senate can have roving commissions to look into the conduct of every former official who has ever served in government.

Let's see how that argument squares with the actual language of the Constitution and the views expressed by its father, James Madison. The governing text says the following: "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." This language surely suggests that the Senate may not try anyone who is no longer a civil officer and therefore cannot be "removed from office." The House managers' brief points to another provision of the Constitution that says the following: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office." The brief claims that this provision gives the Senate power to disqualify someone without removing them, arguing that "the clause does not require removal; it just precludes the Senate from imposing penalties like fines, imprisonment or death."

This is a highly questionable reading of the two constitutional provisions. If the Framers of the Constitution had wished to empower the Senate to disqualify without removal, they would not have used the word "and"; they would have used the word "or." They also would have explicitly granted the Senate power to disqualify former office holders. The brief acknowledges that several state constitutions expressly grant state legislatures that power, but doesn't explain why the Framers of the United States Constitution failed to include it.

James Madison in Federalist 39 supported the view that the impeachment power is limited to presidents who are in office: "The President of the United States is impeachable at any time during his continuance in office." How can this be read as anything other than a limitation on the power of Congress to impeach and remove only sitting "civil officers?"

It would be one thing if the brief argued that it is a close question whether a former president can be impeached and disqualified. But the brief misleads the Senate by stating that there is "no doubt" about that issue and that the opposite view would be "unthinkable."

trump testify senate trial
Representative Jamie Raskin is asking former President Donald Trump to testify at his upcoming Senate trial. Trump speaks to the press in the Oval Office at the White House in Washington, D.C., on September 11, 2019. Nicholas Kamm/AFP/Getty

It also argues that denying the Senate the power to disqualify a former office holder would be "dangerous," because it would leave the president free from consequences of criminal conduct he committed during his last days in office and would "prevent Congress from getting to the bottom of what happened." Both of these arguments are demonstrably false.

The Constitution explicitly provides that a former office holder, including a removed president, "shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." Congress has the complete constitutional authority to hold hearings and conduct investigations to get to the bottom of whatever may have happened.

The brief cites several historical examples from British and American history of failed efforts to impeach and disqualify former office holders. But the brief cites not a single case of Congress ever voting merely to disqualify a former official. If the Senate were to do so, it would be creating a new and dangerous precedent that would allow Congress to rummage through history and use its extraordinary power of impeachment to go after private citizens who once held office. This would turn the impeachment process into a powerful partisan weapon to be wielded against potential opposing candidates.

In reciting the history, the brief misleads the Senate. It correctly points out that in the case of WIlliam W. Belknap—a member of the Ulysses Grant administration who was impeached after resigning from office—the Senate voted 37 to 29 that it had jurisdiction. It then correctly points out that the Senate ultimately acquitted Belknap "after plenary consideration of the merits of the case." But it fails to tell the most important fact: that Belknap was acquitted because more than 20 senators, who believed he was guilty of the underlying offenses, voted for acquittal on the ground that the Senate lacked jurisdiction to try a former official.

So let's understand what's at stake here. A majority of the Senate is seeking the new and unprecedented power to disqualify a future candidate for office who is now a private citizen. That unprecedented power would undercut democracy by giving several hundred people the authority to determine whether millions of Americans could vote for a candidate in a future election. It would be a dangerous extension of Congress's constitutional power to impeach and remove sitting civil officers. If, on the other hand, the Senate were to acquit citizen Trump on the grounds that it lacked the authority to try a former public official, that vote would be consistent with the precedent of Belknap and other cases. More importantly, it would also be consistent with the language of the Constitution and its most influential framer.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, is available on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.