Impeachment of a Former US President: Constitutional Background and Political Considerations
The US Senate convened around midday on 9 February 2021 to decide upon the constitutionality of an impending impeachment trial for the 45th President of America. Earlier, the US House of Representatives had voted on 13 January, by a margin of 232 to 197, to impeach Donald Trump, making him the first President to be impeached twice. Ten House Republicans voted on that day with the Democrats, placing personal belief before communal loyalty. Their decision led to the drafting of a single article of impeachment for “incitement of insurrection”, which was then passed on to the Senate on 25 January.
The proceedings of 19 February were the responsibility of a nine-member team of House Impeachment Managers, made up of eight Representatives and one Delegate. The event opened with a 13-minute video of the events of 6 January, depicting Trump’s “Save America” rally in the Ellipse and leading on to the invasion of the Capitol that followed. The video juxtaposed provocative Trumpian tweets and extracts from his 11,000-word rally speech with video footing obtained from witnesses, reporters, and rioters. It was all self-explanatory and no one watching could possibly deny or even minimise the video’s powerful visual content. The case for impeachment was then made by the lead managers, while two lawyers spoke, somewhat ineptly at times, on behalf of Trump. In the aftermath, six Republican Senators voted with their Democrat counterparts to uphold the constitutionality of the impeachment trial, delivering a 56 to 44 vote to go ahead..
The process of impeachment is an English contribution to the American Constitution, having originated in 14th-century England -1376, to be precise- as a means of ensuring accountability before Parliament for the actions of the king’s ministers and courtiers. A similar need for a system of “checks and balances” was envisaged by the framers of the US Constitution, who enshrined impeachment within the constitutional vocabulary of their newly- independent nation. Since the first impeachment proceedings in America in January 1799, there have been twenty hearings in all, making the second Trump impeachment 21st in the series. The only two Presidents impeached before this, if you set aside the first Trump impeachment, were Andrew Johnson, in 1868, and Bill Clinton, in 1998. Neither was convicted, Johnson’s trial being adjourned before it could be concluded, while Clinton was formally acquitted by the Senate.
The ground rules for impeachment have been laid down in two successive sections of Article 1 of the US Constitution. Section 2 decrees that the House of Representatives has sole Power of Impeachment, while Section 3 determines that the Senate has sole Power to try all impeachments, requiring a two-thirds majority vote to achieve a conviction. Finally, Section 4 of Article 2 adjudges that the President, Vice-President and all “civil officers of the United States” are subject to impeachment when deemed appropriate.
Trump’s impeachment may be unusual in that it is taking place after he has stepped down as President, but is by no means unique in this context. The prosecution has thus cited the example of William Belknap (Secretary of War), who was impeached in 1876 after resigning his office. The “private citizen” defence for Trump may not apply, given that the alleged misdeeds took place while he was still in office and as one is not automatically absolved of one’s actions merely by no longer being in post. Trump’s defence has also questioned the jurisdiction of the Senate in place of the US Supreme Court, but it appears that the Chief Justice needs officiate only when a sitting President is being impeached, as opposed to a former President.
While there are inevitable differences of opinion, a majority of American constitutional lawyers, including some conservatives, seem to agree that the Trump impeachment is supported by the US Constitution. As the trial proceeds, the main emphasis will most likely focus on deciding whether Trump’s acts can be classed under “high Crimes and Misdemeanours”, something that the Constitution fails to clearly define. Each side has two days (a total of sixteen hours) to make its case before the assembled Senators. Unfortunately, in the quasi-judicial setting of the US Senate, voting will eventually depend not merely upon the merits or demerits of the case but will be guided by misplaced partisan loyalties, irrespective of the evidence and the nature of the ensuing debate.
There is inevitably a political dimension to the trial of a former President. On the one hand, prosecuting Democrats demand that Trump should be tried in the Senate so that there is a public record of his alleged misdeeds, irrespective of the final outcome. If Trump were to be convicted, which seems unlikely, he could also be barred from running for public office in the future. Republican opponents of impeachment have cited cynical political opportunism, fuelled by impeachment-hungry Democrats, as the main reason the trial is going ahead . They have also claimed a lack of “due process”, defended Trump’s First Amendment rights of “free speech”, and predicted a deepening political divide within an already fractured nation. No matter what the eventual outcome, the world will be closely watching this latest manifestation of American democracy in action. The hope is that justice will ultimately prevail.
Ashis Banerjee