Writing in the Wall Street Journal Sunday, Chuck Cooper argues that the Constitution permits late impeachments, i.e., the impeachment and trial of former officials who are accused of committing high crimes or misdemeanors while in office. Cooper acknowledges that forty-five Republican senators appear to have taken a different view by voting in favor of Senator Rand Paul’s point of order challenging the constitutionality of former President Trump’s impeachment trial, but he explains that “scholarship on this question has matured substantially since that vote.”
This remark occasioned some Twitter snark (o.k., it was from me) seeing as how the vote took place on January 26, which doesn’t leave much time for scholarship to have “matured.” It was pointed out to me that at least one useful piece of scholarship has emerged in that time, namely Thomas Berry’s four-part series on the question of late impeachment in the Belknap case. (Berry does not take a position on the issue, but very helpfully summarizes the relevant arguments on both sides).
For the most part, though, what has happened is that scholars have come forward to take positions for or against (mostly for) late impeachments, without necessarily adding to the actual scholarship on this issue. Having ten law professors or prominent lawyers make the same argument does not really make it any stronger, particularly when made in the context of a heated political dispute. Nonetheless, it can be important for senators who are looking for guidance or cover.
Republican senators (who are the main audience here) are naturally going to gravitate toward experts who are conservative/originalist, prominent constitutional lawyers, and/or well-known to them and their colleagues. Cooper qualifies on all of these counts. He is a highly prominent and successful constitutional litigator, and he has strong ties to Senate Republicans. (For example, Ted Cruz was one of the first associates Cooper hired when he formed his own law firm back in the 1990s.)
Of course, senators like Cruz, Josh Hawley and Mike Lee consider themselves to be fully qualified to make their own constitutional judgments, but it will be hard for them to deny that the issue of late impeachments is, at the very least, a close question when so many prominent conservative/libertarian legal scholars have come down in pro-late impeachment camp. These scholars include former federal judge Michael McConnell, who argues that the Constitution allows former officials to be tried in the Senate so long as they were impeached while in office, as well as many others (Andrew McCarthy, Ramesh Ponnuru, Dan McLaughlin, Keith Whittington, Jonathan Adler, Michael Stokes Paulsen, Ilya Somin and Steven Calabresi, to name a few), who argue for the constitutionality of late impeachments generally.
Of course, there are legal experts who have come out against late impeachments. Perhaps the most prominent is Phillip Bobbitt, a well-known constitutional scholar (and, it should be noted, someone who is not an originalist and is not associated with Trump or conservative politics). Another is J. Michael Luttig, a well-respected conservative former judge (for whom, incidentally, Cruz clerked). Conservative legal scholars John Yoo and Robert Delahunty have also written a rather overstated originalist argument against the constitutionality of late impeachments. Jonathan Turley, who had written favorably of late impeachments in 1999, has now moved to a position of neutral, leaning against. And two characters from Trump’s last impeachment, Alan Dershowitz and John Bolton, have weighed in against late impeachments. There undoubtedly are other legal experts (however broadly that term is construed) who have expressed similar views, though the ranks are surely much thinner than the pro-late impeachment side.
As noted, numbers alone do not establish who is correct. Moreover, Republican senators who are inclined to oppose impeachment may discount the views of the pro-late impeachment experts on the grounds that they have been influenced by the atrocious nature of Trump’s offense and that (as mentioned in my last post) the facts of the case seem like they were dreamed up by a law professor to support late impeachment. Hard cases make bad law and all that.
Whether this is fair or not, it is worth specifically noting the views of those who have thought and written about this question prior to January 6. Whittington, McCarthy and Turley are in this category, and they all had favored late impeachment. As mentioned in my last post, in fact, while relatively few scholars had addressed themselves to this question even in passing, the ones who did seemed to overwhelmingly support the constitutionality of the practice. One important but partial exception is Justice Story, about whom more later.
To my knowledge, however, the only scholar who has truly looked at this issue in depth and outside the context of a particular controversy is Professor Brian Kalt. (Kalt specializes in odd constitutional issues, including the 25th amendment and late impeachments, and boy did he hit the jackpot with the Trump administration.) If you want an exhaustive and even-handed discussion of the arguments for and against late impeachment, you need to read Kalt’s 2001 article on the subject, in which he concludes that while the “question of late impeachability is close and unsettled,” the better view is that “Congress can pursue late impeachments, based on an analysis of the text, structure, historical underpinnings, and precedent of the Constitution’s impeachment provisions.”
All of which brings me to Senate Resolution 16, which is the brief resolution that the Senate adopted on January 26 in connection with “the article of impeachment against Donald John Trump, President of the United States.” That the resolution refers to Trump in this manner reflects only, I assume, the fact that the article of impeachment is addressed to Trump as president because, of course, Trump was indeed president at the time the House impeached him. Somewhat more interesting, though, is that the resolution states it was adopted “pursuant to rules III and IV fo the Rules and Practice When Sitting on Impeachment Trials,” which are the Senate’s standing rules on impeachment. Rule IV deals exclusively with presidential impeachments and provides that the chief justice shall preside. Unless the reference to Rule IV was a mistake or oversight, it seems that the Senate is still leaving open the possibility that this will be conducted as a presidential impeachment trial.
The final two paragraphs of S. Res. 16 (which is only four paragraphs long) direct the parties to address in both their trial briefs and oral argument the question “whether Donald John Trump is subject to the jurisdiction of a court of impeachment for acts committed as President of the United States, notwithstanding the expiration of his term in said office.” The Senate’s interest in this question seems rather clear, and thus it is not surprising that Trump’s lawyers gave prominent place to this argument in their trial brief filed Monday morning.
What is surprising, however, are some of the tactical choices the trial team seems to have made in presenting this argument. First, they cite only five commentators in support of their argument that the Senate lacks jurisdiction over their client. One is Justice Story, which is understandable, but only gets them so far. Story did not analyze the issue in much detail and said only that there was “some doubt” as to whether a former officer could be subjected to impeachment and trial.
A second commentator heavily relied upon was Bobbitt. This is not terribly surprising as Bobbitt is a noted constitutional scholar who has written about impeachment, though not previously about this specific question. I wonder, however, whether he will have much sway with Republican senators, or how heavily they will want to rely on a non-originalist scholar whose piece on this question begins with “Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol.”
A third commentator cited, though not as heavily, was Alan Dershowitz. This may not hurt them, but it certainly won’t help much, given that Dershowitz is viewed as Trump’s lawyer (having represented him in his first impeachment trial), as well as something of a flake.
A fourth commentator, who is cited several times, is a surprising choice. Harold J. Krent, who is apparently a professor at Chicago-Kent School of Law, wrote a brief article last year addressing the then-hypothetical question of whether Congress could “impeach and convict President Trump after he leaves office.” Krent acknowledges that “[m]ost academics considering the issue have concluded that the removal of an executive branch officer or judge from office does not defeat Congress’s jurisdiction to impeach and try the officer.” Harold J. Krent, Can President Trump be Impeached as Mr. Trump? Exploring the Temporal Dimension of Impeachments, 95 Chicago-Kent L. Rev. 537 (2020). He then lists a number of scholars, including Kalt and Whittington, who take that position. Id. at 537 n. 1. He identifies only one scholar, Justice Story, on the other side, but notes that “few have followed his lead.” Id.
As one might guess, Krent goes against the majority position. He explains that “[a]lthough neither the constitutional language nor sparse history is clear, I argue below, based on a structural understanding of our system of separated powers, that Congress can only initiate impeachment when an officer is in office.” Id. at 538.
You might have spotted the flaw in Trump’s reliance on this article. Trump was in office at the time impeachment was “initiated” against him. As Krent goes on to explain, “[i]t does little violence to the constitutional text to reason that, as long as an officer served in office at the time formal impeachment proceedings started, then the House and Senate retain jurisdiction to continue the process because the officer was ‘in office’ at the commencement of the proceedings.” Id. at 548. This is exactly Trump’s situation. Krent’s argument supports the House managers, not the defense. (I would insert here the shocked face emoji if it were not beneath the dignity of this blog.)
Perhaps even more surprising is the fifth commentator, who is probably the most heavily relied on of all. Trump’s trial brief repeatedly cites Kalt. This is intellectually honest since Kalt is the leading authority on the subject, but as Kalt himself observed on Twitter, they do so in a very misleading way, citing the anti-late impeachment arguments he describes in his article as if he is making those arguments, and leaving out the key matter of his conclusion. Apparently they think that senators are not too bright.
Note that the trial brief does not cite Turley (on this issue), Luttig or Yoo/Delahunty at all. These are the experts that Senate Republicans would probably be most comfortable relying on, yet by ignoring them entirely the brief makes it much harder to do so.
Another odd strategic choice is their approach to the question of who should preside. In my view there is a strong argument that the chief justice should preside at the trial of a former president (see here for a good discussion of the issue). It may be the strongest legal argument Trump has, yet his lawyers barely mention it in passing. Not only could one argue that the Constitution implicitly requires the chief justice to preside, but the Senate itself has seemed to recognize this in S. Res. 16.
Finally, Trump’s trial brief argues that questions of late impeachment are judicially cognizable. I think that this is legally correct, but I fail to see how it helps Trump. If senators believe the legal issue is a close one (and since even most of the anti-late impeachment experts would concede this to be the case), there is a pretty strong temptation to punt it to the courts. The fact that Trump if convicted could later ask the courts to set aside the judgment could be an attractive reason for senators to vote for jurisdiction even if they are unsure on the issue.
While it still seems unlikely that enough Republican senators would vote to convict, the defense team has made it harder for those senators to cite lack of jurisdiction as the reason for acquittal.