Can the Senate still condemn Trump? It’s complicated
Congress has already indicted a former official, despite having dropped numerous cases after he resigned. What now?
It wasn’t even close. After hearing the evidence, 94 senators determined that he was such a disgrace that they voted to exclude him from holding any other federal office.
A little over a decade ago, the Senate was fairly deliberate in the impeachment proceedings against Judge Thomas Porteous of the Eastern District of Louisiana. The trial began in September 2010 and ended in December.
As noted in my book Abuse of Power: As part of the three-year campaign to indict Donald TrumpOf the eight federal officials charged, who were due to be removed from the Senate, all were charged with actual crimes. And the Senate only disqualified three of those eight from future offices.
This is where the Senate sits as it nears the trial of former President Donald Trump that begins next week. Removing him from an office he no longer owns is obviously not an option, but it can prevent him from ever running again. You could also vote to have his pension revoked if convicted, though Trump will be fine without it. Disqualification is what his enemies are really after.
Porteous, who was charged with taking bribes and giving false testimony, was also removed from office by the Senate prior to the subsequent disqualification vote – or more specifically, an actual public official at the time of his trial. Unsurprisingly, this was the case with the other two judges, who were indicted, convicted and re-expelled.
Before Porteous, one has to go back to 1913 when the Senate removed and disqualified Judge Robert W. Archbald from the US Commercial Court after the House indicted him in 1912 for improper business relationships with litigants.
In the Civil War’s only impeachment, Judge West H. Humphreys of Western Tennessee was the first judge to be indicted, convicted, removed, and disqualified from serving. His offense was “waging war on the US government” and putting his impeachment in a separate category. What is perfectly normal about Humphreys is that, like Porteous and Archbald, despite the impeachment of the House, he has tried tenaciously to cling to office.
Congress has only tried a former civil servant once. In 1876, Secretary of War William Belknap resigned from office over a bribery scandal, but the House indicted him anyway. Just as with Trump’s impeachment, the senators argued heatedly about whether it was even constitutional to hold a trial against someone who is no longer in office. They voted between 37 and 29 in 1876 that they were in charge of continuing the Belknap affair, shortly before what would be required for a conviction.
That didn’t stop the Senate from holding a trial that ran from April to August. Belknap was eventually acquitted, although a majority voted for the conviction. Of the 25 senators who voted in favor of Belknap’s acquittal, 22 said their votes were based primarily on the view that the Senate had no jurisdiction – not that they believed it innocent. The 45 Republicans who voted against the constitutionality of the Trump process will have essentially the same process argument.
The Belknap trial arguably isn’t the greatest precedent for the use of government time and resources, although proponents may insist that both Belknap and Trump must be held accountable. Be that as it may, the Senate has never followed suit until now.
In 2009, Justice Samuel Kent of the Southern District of Texas, United States, scribbled a resignation letter from a medical facility in the prison after two Senate officials asked him to testify at his trial. After his resignation, the Senate ended the process. The House charged Kent with sexual assault allegations and blocked an investigation. Kent pleaded guilty to his disability criminal case, but did not immediately resign from the bank to continue collecting his salary.
In 1926 the House indicted Judge George English of the US Eastern District of Illinois for abuse of power. English resigned and the Senate dismissed the case.
In a possibly entertaining trial in 1873, the House indicted Judge Mark Delahay of the Kansas District of Kansas with poisoning on the bank. But when Delahay resigned, the Senate broke the process.
The House’s first impeachment came in 1797 against a Senator, William Blount, on charges of conspiracy with Britain. The Senate, which had already expelled Blount, did not take it well that the House interfered in their chamber. This was a special circumstance, but yet another example of the Senate choosing not to bring a former official to justice when there was water under the bridge.
Then of course there is the most famous retirement of all. The entire House could have used the Belknap case as a reason to vote on impeachment proceedings approved by the House Judiciary Committee back in 1974 and send them to the Senate. And maybe they would have done it in today’s political environment. President Richard Nixon was only impeached before he went on bail. Countless other politicians and judges have also resigned to evade outrage at a likely impeachment. The Congress, which saw no use, withdrew.
Aside from arguments about merit and practicality, the House clearly had the right to vote on Trump’s early impeachment, even if it was seven days before his term ended. Unlike the first impeachment against Trump, the second indictment of incitement to rebellion alleges at least one crime.
The bigger question is whether the Senate has jurisdiction. Since this is a political matter, it is unlikely that a federal judge would ever consider deciding on it. So we could expect more of it in the future.
Fred Lucas is the author of Abuse of Power: As part of the three-year campaign to indict Donald Trump (Bombardier Books, 2020) and is the main national affairs correspondent for The Daily Signal and co-moderator of the “The Right Side of the Story” Podcast.