The interesting question about the constitutionality vel non of impeaching a president who is no longer in office is obscuring a matter of more practical relevance: What will the impeachment trial look like?
Media coverage has centered on the divide in the Senate over the constitutional question, particularly Utah Republican senator Mitt Romney’s assertion in a weekend CNN interview that the impeachment is valid. The New York Times portrays Romney as breaking Republican ranks. He may be, but the Republican position is not black and white.
Whether an impeachment trial for a non-incumbent is constitutional is a separate question from whether conducting one is a good idea. The two are melded, though, by what appears to be the majority GOP position in opposition to an impeachment trial for former president Trump. Some Republicans will try to dismiss the case on constitutional grounds after House speaker Nancy Pelosi (D., Calif.) sends the “incitement to insurrection” article of impeachment to the Senate on Monday. Other Republicans, such as Senator Marco Rubio (R., Fla.), argue that an impeachment trial will further divide the country, and are poised to avert it, or shut it down as early as possible, on whatever grounds are available. The constitutional niceties seem beside the point.
I say this core constitutional question is less practically significant than it should, perhaps, be because it is a foregone conclusion. The Democrats are in the (narrow) majority, they will unify in favor of conducting the trial, and there will be enough Republicans who conclude that such a trial is constitutional that the full Senate will approve it.
Those who think the Supreme Court will ultimately have to resolve the constitutional question are, I believe, mistaken. The Constitution gives the Senate plenary authority over the trial of impeachments. History and precedent are on the side of those who argue that impeachment trials of non-incumbents are constitutional, but that is beside the point. The Supreme Court surely wants no part of this hot political dispute, and the Constitution’s commitment of impeachment trials to Senate control gives the justices a good reason to stay out of it.
Although I think a censure would be better, if the Democrats want a trial, then there is going to be a trial. Practically speaking, then, the pertinent issue is what the trial will look like. I do not think it will much resemble the impeachment trial of then-president Trump that took place a year ago.
For the reasons I posited on Friday, this is not going to be a presidential impeachment as that scenario is commonly understood. Trump is no longer president. The constitutional mandate that the chief justice of the Supreme Court preside over an impeachment of the president therefore does not obtain. Trump’s impeachment, then, will be akin to the impeachment of other impeached officials who are not the sitting president.
For all impeachments other than that of the president, the presiding officer in the Senate is, as usual, the vice president of the United States or, in the vice president’s absence, the president pro tempore of the Senate. For present purposes, that means Vice President Kamala Harris (D., Calif.) and Senator Patrick Leahy (D., Vt.). [Author’s note: After this column was written, sources indicated to various media outlets that Senator Leahy “is expected to preside” over the Trump impeachment trial.]
Some commentators on the right grouse that this is inherently unfair to former president Trump, but this misses the point. Impeachment is a political process, not a legal one; there is no entitlement to the kind of due process required in judicial proceedings, where a presumptively impartial judge and counsel for the parties select a jury of the defendant’s peers, which has been vetted to ensure its objectivity.
To repeat my point from Friday, the reason the Constitution requires the chief justice to preside over presidential impeachments is not to transcend politics — the Senate partisans are still ultimately in charge. The chief justice is installed in this largely ceremonial post to avoid the unseemliness of having the Senate’s usual presiding officer, the vice president, preside over a trial in which he or she has a vital personal interest in the outcome (viz., accession to the presidency if the incumbent is convicted and removed).
The Democrats will have a problem in that the impeachment trial they will run, rather than one over which Chief Justice Roberts might preside, will look more blatantly like a partisan show trial. That will rub much of the public the wrong way. But that is a political problem, not a constitutional concern.
When an impeachment trial takes place under the supervision of the Senate’s presiding officer, Rule XI of the Senate impeachment rules empowers the Senate and the presiding officer to “appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine.”
That is, there need not be a full-blown trial before the entire Senate sitting as an impeachment court. The Senate may refer the matter to an ad hoc impeachment trial committee. Or, to avoid having to assemble such a committee from scratch, it could refer the matter to an existing committee — most likely the Judiciary Committee, which, under the chamber’s new Democratic majority, is now chaired by Senator Richard Durbin of Illinois, who remains the Senate’s No. 2 Democrat.
While the impeachment committee would be governed by Senate impeachment rules and practices, the Senate and the committee have leeway to vary those as they see fit. The committee would conduct the trial, generating a transcript of all proceedings (including witness testimony, if there is any), which would eventually be certified to the full Senate. The full Senate could conduct additional proceedings to supplement that record. But the full Senate could also base its verdict — and, if the verdict is guilty, its disposition on the issue of disqualification from holding office in the future — on the committee’s work.
I continue to think there is scant chance that the former president will be convicted and disqualified. Nevertheless, this Trump impeachment trial is likely to be a lower-key affair than the one in early 2020, when President Trump was in office. The trial will be significant, but its interference in the confirmation of Biden administration officials is likely to be minimal, and its domination of the full Senate’s time greatly diminished.