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02/01/2021

The Senate Cannot Properly Try “Donald John Trump, President of the United States,” Because Today There Is No Such Person
David Weisberg

There has already been a blizzard of commentary about the constitutionality of impeaching and trying now-former-president Donald Trump.  Still, I’d like to add one more snowflake, and it’s this: I think Trump can’t properly be tried by the Senate because the House’s Article of Impeachment impeached him not as an individual and a former president, but in his capacity as president.  Now that Trump is no longer president, the Article no longer accurately refers to anyone, and the Senate cannot properly try so defective an article of impeachment.

The caption of the Article of Impeachment recites: “Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.”  The Article itself begins:

RESOLUTION

Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.

Resolved, that Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following article of impeachment be exhibited to the United States Senate:

Article of Impeachment exhibited by the House of Representatives of the United States of America in the name of itself and the people of the United States of America, against Donald John Trump, President of the United States of America, in maintenance and in support of its impeachment against him for high crimes and misdemeanors.

The person who “is impeached” here is “Donald John Trump, President of the United States”—the impeachment is “against him.”  But today there is no such person.  Trump is now a private citizen and a former president.  The House impeached him in his capacity as president, and when it passed the impeachment resolution, he still was president.  But he wasn’t president when, on Jan. 25, the Article was exhibited to the Senate, and, most crucially, he was not president when the Senate officially commenced the trial of the impeachment on Jan. 26.  On Jan. 26, and when the Senate trial resumes in February, the Senate did and will act pursuant to an Article that impeaches President Trump.  But, on Jan. 26 and in February, there was and will be no President Trump for the Senate to try, because there was and will be no President Trump.  His term ended Jan. 20.

Prof. Michael McConnell argues that the Senate has power to try all impeachments, and not merely the power to try impeachments against sitting officers.  The Constitution does indeed empower the Senate to try “all impeachments,” but surely the impeachments the Senate is empowered to try must, at a minimum, be facially valid.  Suppose the House adopted articles impeaching “Anthony Blinken, Secretary of Defense.”  There is a senior officer in the federal government named Anthony Blinken, but he’s not Secretary of Defense.  There is also someone who is the incumbent Secretary of Defense, but he’s not Anthony Blinken.  Would the Senate proceed to try articles of impeachment that are so clearly invalid on their face?  No.  Because of the change in Trump’s status from president to former president, the current Article of Impeachment is similarly invalid and cannot properly be tried by the Senate.

Nothing I’ve said implies that the House could not impeach, and the Senate could not try, Donald Trump, as an individual and former president, for all the misdeeds alleged in the current Article of Impeachment.  The House simply would have to adopt a revised article of impeachment and then transmit that revised article to the Senate.  Although the revisions would be easily made, I don’t believe my point is a quibble. 

We have been told that impeachment by the House and trial in the Senate, especially with respect to the presidency, are grave and solemn matters.  If that is so, and the House is going to delay transmitting articles of impeachment until after a president has left office, and the Senate is going to try someone who is a former president, both bodies should be completely honest with the American people.  That is, both should proceed pursuant only to articles of impeachment that accurately and honestly disclose precisely what they are about. 

If a majority of the Senate thinks it is proper, for the first time in our history, to try the impeachment of a person who now is a former president, that majority should insist that the House exhibit articles of impeachment that are drawn against the person as a former president.  A momentous step should not be taken in a sloppy, off-hand way.  Of course, the Constitution does not say that it would be improper for the Senate to try the impeachment of “Anthony Blinken, Secretary of Defense,” yet, notwithstanding the Senate’s power to “try all impeachments,” the trial of “Anthony Blinken, Secretary of Defense,” would clearly be improper.  For the same reason, it would be improper for the Senate today to try the impeachment of “Donald John Trump, President of the United States.”     

As I’ve said, the Senate could properly try in February an article impeaching “Donald John Trump, former President of the United States,” and it could then either convict or acquit “Donald John Trump, former President of the United States.”  But it is now literally impossible for the Senate to try the impeachment of “Donald John Trump, President of the United States,” because there is no such person, any more than there is an Anthony Blinken, Secretary of Defense.