The United States House of Representatives impeached then President Donald Trump for a record second time on January 13, 2021, for his alleged role in inciting the deadly attack at the Capitol one week earlier on January 6, 2021.
While many used to believe the term “impeachment” meant the president was actually removed from office, as most now know, especially as a result of the first impeachment of then President Donald Trump, impeachment is the act of the House of Representatives essentially charging the president with some wrongdoing then sending it over to the United States Senate for a trial, requiring a vote of 2/3 of the Senate members present to convict and remove from office. That means, impeachment alone does NOT remove from office and the person charged continues in office without any new restrictions or limitations unless and until the Senate convicts at the impeachment trial.
There has been much confusion over this procedure, including the validity or constitutionality of holding an impeachment trial AFTER a president or other official leaves office. President Trump already left office on January 20, 2021, and even though the impeachment procedure was commenced by the House of Representatives while then President Trump was still in office, there is constitutional issue as to whether an impeachment trial may take place after the person leaves office.
In fact, just yesterday, January 26, 2021, Senator Rand Paul (Republican from Kentucky) brought a resolution stating the trial of former President Donald Trump is unconstitutional since Donald Trump is no longer president but now a private citizen. Forty-five (45) Republican supported Paul’s resolution, not enough to pass it but certainly enough to signal that the impeachment trial requiring a 2/3 vote to convict will not be successful.
The following will present the actual text of the relevant impeachment clauses from the Constitution of the United States all in one convenient article for you to easily see for yourself. And the presented text is relatively brief and clear so don’t be deterred. In fact, to make this even easier and as easy and quick as possible for our readers, for each clause of the Constitution that applies to this topic that is presented below, first we shall present just the relevant abbreviated text (in both bold and italics), then after some brief commentary will also be presented for the readers’ convenience the full text of the presented clause (the full text only in italics) for those readers interested in reviewing the full text and with sufficient time to review the full text. But for those with less time or interest, we suggest you start by just reading the relevant abbreviated text presented below for your convenience in both bold and italics. In addition, for those with more interest and time, there are a plethora of articles and commentaries on this subject, easily accessible including via Google. Let’s start:
Article 2, Section 4, states in relevant part:
The President … of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
This section clearly states the President of the United States is subject to impeachment and the grounds justifying same. However, note: no definition is provided for the key term “other high Crimes and Misdemeanors”. This term is open to much interpretation and analysis, and one former member of the House of Representative, former un-elected president, Gerald Ford, once said it means whatever the House wants it to mean.
Further, this section makes it clear that removal from office is a two-step process, first “Impeachment” then “Conviction”.
In addition, there is the issue whether impeachment only applies to sitting presidents or includes ex-presidents like Donald Trump? The plain text of the Constitution, which states that “The President …shall be removed from Office on Impeachment … and Conviction,” could be read to support the requirement that the process only applies to presidents who are holding office during this process because it is impossible to remove someone from office who already left office. This clause does not also state ex-Presidents may be removed from office. Here, the ex-President has already been removed from office; he voluntarily left office on January 20, 2021 when his four (4) year ended and President Joseph Biden was sworn in as the 46th President of the United States. But note there is a further argument supporting the right to pursue an impeachment trial of an ex-president that will be presented below in the commentary to Article 1, Section 3, Clause 7 and, perhaps, most importantly, as discussed above, the Senate already considered this issue yesterday and it was defeated when only 45 Republicans voted for it.
The full text of Article 2, Section 4 states as follows:
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.
Next, Article 1, Section 2, Clause 5 states, in relevant part, as follows:
The House of Representatives shall … have the sole Power of Impeachment.
This section clearly grants the House of Representatives the sole power to impeach—again that is NOT removal from office, but rather the act of essentially charging wrongful conduct leading to a trial by the Senate.
The full text of Article 1, Section 2, Clause 5 states as follows:
The House of Representatives shall chuse (choose) their Speaker and other Officers; and shall have the sole Power of Impeachment.
Next, Article 1, Section 3, Clause 6 states, in relevant part, as follows:
The Senate shall have the sole Power to try all Impeachments … When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
This section makes it clear that only the Senate shall try the president for wrongful acts specified above in Article 2, Section 4; that the Chief Justice (of the Supreme Court) shall preside when a president is tried; and a 2/3 vote of the members PRESENT is required.
So note: When the President is tried, the Chief Justice is to preside, but here since former President Trump has already left office, he is NO longer president. Hence, there is NO requirement that the Chief Justice preside. As a result, the Democrats in control of the Senate appointed a senior Democrat member to preside over the trial of this Republican former president. This procedure raises all sorts of additional issues about impartiality and conflicts of interest. Also, rumor has it that the Chief Justice, John Roberts, did not want to preside over this trial.
Further, when the Chief Justice is presiding, his role is to preside and not vote. But when a senior member of the Senate is chosen to preside, he acts both as judge and juror because each senator votes. This creates obvious issues, including about required impartiality of anyone presiding over a trial, conflicts of interest, etc.
In addition, this clause makes it clear a 2/3 vote of those present is required, not a 2/3 vote of all member of the Senate. The Senate is comprised of 100 members, plus the elected Vice President, now Kamala Harris, a Democrat from California, who is permitted to vote only to break a tie. Thus, if all 100 Senators are present, then 67 votes are required for a conviction and the Vice President would not vote. But if only 90 Senators are present, which is very unlikely, then only 60 votes are required to convict.
The full text of Article 1, Section 3, Clause 6 states as follows:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Next, Article 1, Section 3, Clause 7 states, in relevant part, as follows:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office … under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article 1, Section 3, Clause 7 states impeachment may extend to “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, according to Law.” This is one key argument as to why a president impeached while in office may still be tried and convicted after leaving office because the Constitution allows the Senate to not only remove an impeached president from his office, but also prevent and disqualify him from holding future office. Senate Majority Leader, Charles Schumer (Democrat from New York) said, “If the framers intended impeachment to merely be a vehicle to remove sitting officials (presidents) from office, they would not have included that additional provision.” Otherwise a sitting president or other official could escape this disqualification provision simply by leaving office before an impeachment trial could be held, which is not logical.
The full text of Article 1, Section 3, Clause 7 is as follows:
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, according to Law.
Of interest – albeit slightly off topic – is Article 2, Section 2, Clause 1, which states, in relevant part, as follows:
The President shall … have Power to grant Pardons for Offenses against the United States, except in Cases of Impeachment.
Why is this clause of interest? Because for years there has been discussion and debate whether a president, especially President Trump, could pardon himself and/or his family.
We can see here from the text of the Constitution that it appears the power to grant pardons is unlimited except it does NOT apply to cases of impeachment. Because the Constitution clearly states this one limit on the pardon power of the president and NO other limit, including there is NO exception that the President cannot pardon himself or his family, there is a strong argument that the President could pardon himself (and or his family), except for impeachment.
Of course there are many counter arguments, including one should never be both the judge and judged, but since the Constitution is silent on this subject, and no president to date has pardoned himself, it remains to be tested. It is an issue that could ultimately go the Supreme Court, should it ever arise. And by analogy, should the person who presides over the impeachment trial be permitted to both preside and vote—as seems to be the case now?
The full text of Article 2, Section 2, Clause 1 is as follows:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
You now have had the opportunity to read in one convenient place all applicable sections and clauses of the Constitution as they apply to impeachment and a president and ex-president.
The primary purpose of this blog was to present in one convenient article the relevant clauses of the Constitution that apply to the current impeachment of former President Donald Trump. Now that you have had an opportunity to read the relevant clauses, what do you think?