Monday at the Bar: Can The Senate Try An Ex-President?

Lots of people are asking the same question.

And now NPR is taking a look at it:

Can The Senate Try An Ex-President?

Frankly, I think the answer is no, and the example of Richard Nixon is a good one. Sure, he'd been pardoned, but an impeachment might not really remove the incidents of being convicted in an impeachment.  If Congress thought there was any chance that they could have tried a President after he left office, they would have impeached Nixon.

And the text of the Constitution is clear:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, 

"[N]ot further than to removal from Office, and disqualification to hold and enjoy any Office . . . 

It doesn't say "removal. . . or disqualification".  It says not further than "removal. . . and disqualification.

Of course, you could argue, and now the argument will be made, that those punishments are the highest that can be meted out, but lesser ones can be as well. So they're a cap. And you could still find a person disqualified to hold office.

Sure, that's true, but by the same logic you could find an aged bank robber who passes away prior to his trial liable for the full measure of a sentence as well.  

And that's the problem.  Impeachment is for removal.  

And the fact that impeachment is for removal means we're now going to see the government tied up in the circus of an impeachment trial followed by some sort of appeal to the United States Supreme Court. . . assuming that a motion to dismiss isn't entertained and granted by Justice Roberts, who has the misfortune of presiding over all of this.  It'll be a giant distraction, and a distraction at the very period where Biden, if he's to have a successful Presidency, needs to act.

And there are alternatives.  If President Trump is guilty of crimes, which it is argued an impeachment does not actually require, he could be charged and tried for those.  Indeed, a long investigation in New York is still pending and seems likely to.  If he's convicted of any felony, he's likewise be unable to hold further office, and there's be additional penalties at that.

Which is why he'll likely attempt to pardon himself on the way out the door.

But, at least in my view, you can't pardon yourself.  It's never been tested, of course, but I doubt very much you can do it, and when that's reviewed by the Court, the Court will hold that. To hold opposite would be to place the President above the law.

None of which is an argument in any fashion to the effect that the entire post election administration denying the results of the vote fiasco shouldn't be looked at. Real damage has been done to our democracy and the insurrection was inexcusable.  The basic gist of impeaching the President would be due to the insurrection, the full facts of which we really aren't aware of in regards to guilt.  At a bare minimum, Trump was careless with his words and that fueled the violent storming of the Capitol.  That may or may not be a crime under conventional law, but under the Constitution, it might amount to a "misdemeanor" in context, a topic that we dealt with way back during the President's first impeachment.  Which means that the impeachment trial may end up being essentially a prolonged hearing which may be worthwhile undertaking in its own right, for fact finding purposes.  And they likely feel that they simply can't stand and do nothing.

Which gets me back to some earlier made points, one being that if Nixon had been tried back in 1973, which would have required Ford not pardoning him, we wouldn't be enduring this now.