LaxPower Back-Up Stick

Woke up this morning thinking about the mechanics, logisitics, and legalities of the upcoming second impeachment trial of DJ Trump, given the 50-50 senatorial split that exists now. When searching how any ties might be broken as regards procedure and resolution I was directed to the following article relating to the first trial brought about by Trump's Ukrainian shenanigans which I found quite informative and thorough, and judged worth sharing with all you lot:

https://www.rstreet.org/2020/01/27/can- ... dential-im

There are indeed going to be some number of unprecedented legal issues presented in the second impeachment trial.

This article was written before the first trial. One of the issues discussed was, in effect, resolved by chief justice Roberts during the trial. He issued a statement that he did not have the power under the constitution to break 50-50 ties in presidential impeachment trials.

While I think his position is correct as a matter of constitutional law, I thought he was wrong to issue the statement. The statement was an advisory opinion because there was no “live” legal issue before him. In the last trial, no motion or other matter was tied 50-50. Had that been the case, then Roberts would have properly had the issue before him and he would have been within his rights to rule. I remember being quite surprised last year that he issued this advisory opinion. Having said that, I think his position is correct.

I posted on this previously, and won’t repeat here what I’ve said, but I think the correct reading of the constitution is that Roberts should preside over this impeachment trial. I believe the issue has been put to him, and we are waiting for his ruling.

I understand the textual argument this writer makes that even if the chief justice is the presiding officer over a presidential impeachment trial, the vice president has the right to break 50-50 ties. I don’t agree with that conclusion. Granted you must read a couple of constitutional provisions together which could be viewed as inconsistent, but that is not uncommon in jurisprudence.

The constitution clearly provides that the chief justice, not the vice president, presides over presidential impeachment trials. If the vice president has been replaced as presiding officer, it seems to me eminently logical that the VP then loses the right to break ties. The obvious reason for that is that in the impeachment trial of a sitting president, the vice president has a clear conflict of interest. Of course, there is no such conflict in T****’s second impeachment trial.

If Roberts decides, however, that the constitution does not provide for him to preside over the impeachment trial of a former president, then I think it is clear that Harris would do so. And she would break ties because she is specifically authorized to do that in the constitution. One potentially key thing I don’t know, however, is what has been the history of the vice president’s participation in non-presidential impeachment trials.

Neat thread....

Does the Constitution even allow for impeachment of a citizen?

This could also open another (assumed) unprecedented situation that would put Robert in a bind, if they first need to determine/hear if Trump can even be impeached as a citizen. Seems many legal scholars are split.

Yeah, but what does the Kraken think?

I suppose T**** could file a lawsuit seeking to enjoin the Senate trial, but I don’t think any court would entertain it.

I think the way the issue would come up would be for T**** to challenge a Senate conviction and/or disqualification in court afterwards, arguing the Senate, under the constitution, cannot convict and/or disqualify a former president.

That case would wind its way through the courts and almost certainly (really certainly) end up in the Supreme Court. I don’t think Roberts would have to recuse himself. Even if he presides over the impeachment trial, in all likelihood, he won’t be making any substantive rulings. And if he does, they will be rather inconsequential.

I was thinking the Senate could not even entertain an 'impeachment' vote, of a former POTUS. And that the SCOTUS may have to make that determination, before it could be voted on.

Maybe I am making matters worse in my understanding... I simply did not think a former POTUS/current citizen, could be "impeached".

youthathletics wrote: ↑Sat Jan 23, 2021 2:39 pm I was thinking the Senate could not even entertain an 'impeachment' vote, of a former POTUS. And that the SCOTUS may have to make that determination, before it could be voted on.

Maybe I am making matters worse in my understanding... I simply did not think a former POTUS/current citizen, could be "impeached".

He was impeached while still President, by the House. He can be convicted by the Senate even now that he has gone to play golf on his own dime for once. Here is one law professor's opinion on the issue, which seems pretty sound -- both as to the text and the purpose of the process:

https://www.nytimes.com/2021/01/14/opin ... enate.html

"Article II, Section 4 of the Constitution provides that the “President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” If that were all that the Constitution said about impeachment, there might be something to the argument that once the individual no longer holds the office, the impeachment power becomes defunct.

But Article I, Section 3 says more. In describing the powers of the Senate to conduct an impeachment trial, it provides that “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” (emphasis added).

That latter clause is the key, because it drives home that the Senate has two decisions to make in impeachment cases: First, it must decide whether an officer should be removed. Then it must decide whether this person should be disqualified from holding any future federal office. Indeed, of the eight officers the Senate has ever voted to remove, it subsequently voted to disqualify only three of them — reinforcing that removal and disqualification are separate inquiries. And as this procedure and historical practice make clear, by the time the Senate votes on disqualification, the officer has already been removed. In other words, disqualification, at least, is itself necessarily a vote about a former (as opposed to current) officer.

More than that, the disqualification power is both the primary evidence of and the central reason the Constitution allows for the impeachment of former officers. Were it otherwise, an officer facing impeachment, or an officer who has already been impeached and is about to be removed, could also avoid disqualification simply by resigning. In 1876, disgraced Secretary of War William Belknap tried exactly that — resigning minutes before the House vote on his impeachment. The House impeached him anyway, concluding that his resignation did not defeat Congress’s impeachment power. And although some senators ultimately voted to acquit Belknap (who narrowly escaped a guilty verdict) because he was no longer in office, the Senate as a body first concluded that it had the power to try former officers, adopting a resolution that Belknap could be tried “for acts done as Secretary of War, notwithstanding his resignation of said office” before he was impeached.

The Belknap case cemented two precedents: Congress can impeach and remove former officers, but the fact that the defendant is no longer in office is one factor that senators may take into account in deciding whether to vote to convict. So, when President Richard Nixon resigned in August 1974 in an effort to forestall his seemingly inevitable impeachment and removal, that act did not deprive Congress of the constitutional power to still impeach, remove and disqualify him; it merely mitigated the perceived political expediency of doing so. By resigning, Mr. Nixon took at least some responsibility for his conduct. And the circumstances of his resignation left no reason to believe that he would ever again be a candidate for federal office.

But there is no indication that Mr. Trump plans to resign. His term ends next Wednesday only because Section 1 of the 20th Amendment says so. He is not going willingly. And he has made no secret of his interest in running for president again in 2024. What’s more, under the Former Presidents Act of 1958, he stands to receive significant financial and other tangible benefits, including a handsome annual stipend, funds for offices and a staff, and a pension. But that same statute denies such benefits to a former president who was removed “pursuant to Section 4 of Article II of the Constitution.” So whether Mr. Trump is impeached, convicted and disqualified determines not only whether he could ever again hold federal office but may also bear upon the extent to which federal taxpayers will be subsidizing his activities in the years to come.

The conservative argument would say that the Constitution leaves Congress powerless to deal with such a case — or with any scenario in which a president commits grossly impeachable acts in his final days in office. Not so. Whether he should be convicted and disqualified remains, under the Constitution, in the sole purview of the Senate."

The Senate is not going to hold up its trial voluntarily to allow any legal challenges to play out. Just won’t happen.

So T**** would need to get a court to enjoin the Senate from acting if he wanted to test the issue in court first. No court would grant such an injunction.

The question of whether a former president can be convicted and disqualified by the Senate is not frivolous, but I agree with the majority of folks who think it is constitutional and proper for the Senate to complete the process started by the House and, if they so decide, convict and disqualify a former president.

I expect T**** will file a preliminary motion in the Senate to dismiss the impeachment article on the grounds of mootness or unconstitutionality. That motion would need 51 votes to succeed. I think all Democrats and some Republicans would vote against. Even if the motion tied 50-50, it would not be granted.

FWIW, I don’t think there are 17 R votes to convict at this point. Currently maybe 5+/-, 10 at most. Mitch is key. If he votes to convict, and many think his murmurings suggest that is where he is going, perhaps enough will come along with him to reach 17. He said this will be a vote of conscience, so they won’t be doing any lobbying. So they say.

I think the greatest risk for T**** is that some bad evidence comes out between now and when the Senate votes. If that happens, he might get convicted. If he gets convicted, I think it is a no brainer he will be disqualified (majority vote). If that were to happen, I would expect him to take it to court.

It’s interesting to me that a lot of the impeachment precedents are non-judicial, but rather arise from impeachments by the House and trials in the Senate.

Technically, those precedents are not legally binding on the Supreme Court, or any court really. Nevertheless, would the courts give weight and, if so, how much to these precedents? I think they will give at least some weight, maybe a lot.