A Nuanced Perspective on the Constitution & Impeachment

I want my blog to capture my point of view on critical topics at least once in a while. Writing is a keepsake of the fact that I exist – that I am not errant thoughts in a void. Now that I have kids I feel like this is a more valuable thing to do but I admit to having less time and energy to sit down and write.

So quickly I want to just hammer out my thoughts on the second impeachment of former President Trump. When examining critical issues I try to focus on applying a “nuanced perspective”.

What is a nuanced perspective?

When I look at ethical, political, or social viewpoints I like to look at them from multiple perspectives and evaluate the perspectives altogether in aggregate.

This is not the same thing as “devil’s advocacy” (the application of the opposite perspective). A nuanced perspective can apply similar yet differing points of view – sometimes they are opposed, but they’re not being considered as opposition for opposition’s sake as “devil’s advocacy” is.

A nuanced perspective can still consider opposing viewpoints if they are relevant to the discussion or common competing points of view. It can also address assumptions by generating an opinion for different possible different outcomes. Then taken altogether the nuanced perspective informs your opinion as a whole on an issue

I’m going to jump right into the matter, those of you who follow me on Facebook know how I feel about the deplorable people who were involved in the Capitol riots and know how I feel about Trump in general.

The prime point of contention in the second impeachment is the matter of its constitutionality. The Trump team and the Republican Senate tried to push the agenda that the trial is unconstitutional since Trump is no longer in office. Pretty simple argument and very convenient for the side on the defense.

Nuance Perspectives – Constitutionality Trump’s 2nd Impeachment

Conservatives view themselves as morally strict and virtuous to rule of law but in practice, they generally are totally fine being partisan hacks and giving up higher principles in favor of technical exclusions when it benefits them. Even though that is the case the constitutionality claims do deserve some thought on their own as it is good to evaluate on principle.

Foremost, you can look at the impeachment process itself from two different main points of view – and taking a nuanced perspective means considering them both and what their implications are.

The first of these points of view is to view impeachment as a purely political process (as it is being handled entirely by elected officials). The second competing view is impeachment is a more legal process with strict binding to the Constitution terms as if it were a normal law. Let’s think about these perspectives for a moment.

If using the first perspective then essentially the Constitution permits Congress to fill in the blanks on minor issues that are not clear from the reading – like if a President who has left office can be still convicted of articles of impeachment that were passed while he was in office. This view would hold that if the Senate votes “Yay” on a trial being okay then the matter is concluded rendering technical arguments about the constitutionality moot.

The second position being a more legalistic viewpoint would say the impeachment process could (and should) be derailed the moment a technical exclusion is found. This makes sense from a principled standpoint but is nonsense when you consider the Constitution was not written with the perspective of being a document of criminal/civil law definitions. It does not clearly define the process to the most minor details it just broadly assigns the powers to Congress. You could essentially derail an impeachment for almost any outlying reason or circumstance if you took this thought process to an extreme.

Ultimately whether you’d take one attitude or the other the process would be decided in all cases by the current sitting Congress regardless. At the end of the day, the Constitution is very clear about who has the power to impeach. That part is simply not in contention.

So just because we are leaning more towards the first perspective doesn’t mean that considerations of the second perspective couldn’t be important. We may need to consider that where possible the technicalities of the Constitution should be followed closely, within reason of its purpose. That said I think we should all admit honestly that primarily impeachment is best thought of as a political punishment for a political problem.

The argument of the trial being unconstitutional since Trump left office has a few perspectives we need to consider further. I’d like to look at three points of view.

First I’d like to look at a true Constitutional “meaning of the founders” perspective. Second a more historical perspective of how impeachment has been used in the past. The third I like to call the “modern-day common sense” perspective to just shed any preconceptions and look at things holistically. All of these have different implications.

“True Constitutional Perspective” on Impeaching Former Officers: The Founders discussed impeachment in several debates in 1787-88 during the formation of the country and the consensus was simple. They wanted a means to hold the executive accountable as a check and balance. They were wary of corrupt officials using their corrupt influence to stay in power or betray the interests of the country to a foreign adversary and did not solely trust that it would always be as simple as voting the official out of office during their next election. Impeachment has an ancient historical record that the Founders considered this when drafting the Constitution.

James Madison pointed out during the debates that the point of his support for including impeachment in the Constitution was that it was simply necessary to defend the public against the harms of a corrupt official. George Mason had many concerns that a corrupt President could even impact elections and even use his powers to stop investigations into himself (I can’t imagine those things happening in today’s world…). Mason felt limiting impeachment to “bribery” and “treason” was too limiting to the impeachment powers, this leading to the inclusion of the “high crimes and misdemeanors” addition.

The core idea here was to have accountability in the office to keep the people safe from corruption without creating an imbalance in the power structure of the new government. This perspective could go both ways on whether it is constitutional to impeach after someone has left office – in one instance you could argue that removal is the core function of impeachment so once an officer is removed the impeachment matter is resolved. In the other instance, you could claim that it was clear the Founders believed impeachment was a matter of justice for those who violate their office and were highly suspect of letting a corrupt official find a means to escape full accountability. The President and other high officials could be said to wield the maximum power available in our government to create injustice and the Founders were vehemently opposed to that going unaccounted for.

I would assert that disqualifying an official from future office is a necessary facet of impeachment as it holds them accountable into the future beyond mere removal. If you can actively resign or commit impeachable offenses close enough to the near the end of your term to skirt that punishment, the punishment effectively does not exist. I don’t think the Founders would have liked that.

As Benjamin Franklin put it during the impeachment debates, the impeachment process is in place to make sure the highest offices of our government can be punished when it is deserved. I think the idea that this is about justice and punishment weighs against the idea of the matter being resolved purely if the officer is out of office otherwise, why include the second punishment of disqualification from future office? If the official deserves disqualification I’m pretty certain a majority of the Founders would be unhappy to see them avoid that punishment on the technicality that they left office because it could be applied.

We must have punishments like impeachment after all as Franklin also pointed out, impeachment is better than the older means of dealing with corrupt officials – assassination.

“Historical Perspective” on Impeaching Former Officers: There haven’t been that many impeachments in history (complete list) so the standards still have a lot of room for evaluation.

At first, the very first impeachment of Senator William Blount for Conspiracy looks like it might serve as a relevant standard as the trial was dismissed after he left office due to jurisdictional concerns but the likely jurisdictional point was not that he left office first but rather that as a member of the Senate impeachment was not relevant to him (as of today it is understood to be mainly the President, appointed judges, and other civil officials to be eligible for impeachment – not Senators or House of Representatives members).

It is clear from the historical perspective that a tradition had formed around the dismissal of impeachment once the tried had left office so many cases of clear guilt wound up dismissed when charged eventually resigned before the Senate could complete their trials.

One exception to this was the case of U.S Secretary of War post-Civil War, William Belknap. He was profiteering with his position and was guilty as sin, issuing a resignation to President Ulysses S. Grant after an emotional confession to the President personally. After the resignation, the House issued the articles of impeachment, and months later, the Senate had a trial hearing of 40 witnesses. The trial ultimately was an acquittal but it did have a full trial.

Another case worth a look at it is West Hughes Humphreys, a US District judge who held multiple seats during the civil war but then during his term served with the confederacy as a confederate judge. Now he never resigned as a US District judge, but he did quit and start serving the confederacy at least until the Civil War ended. However, before that could happen, the House and Senate promptly removed him.

“Modern Day Common Sense Perspective” on Impeaching Former Officers: Finally let’s look at this from the perspective of a modern person who wants a functioning government regardless of the historical precedents.

The idea of impeachment hasn’t changed in all this time, the idea of holding a corrupt official accountable at the highest levels. That is the essential purpose.

For it to have any bite it has to entail a punishment that affects the capacity for someone to hold office, so I feel there is a necessity for the option to disqualify from future office holding and if someone were to resign before the end of a trial or just commit their misdeeds at the end of the term, they could throw their hands up and say “well I’m no longer in office” and everyone calls it a day. I would argue there should be more penalties in place for impeachment, which makes it seem even more unjust to call this trial unconstitutional.

That said we would today want to hold a balance of power in the government for the same reasons as the founders had declared when they formed it, so having endless powers of impeachment could also have its issues. So there is a thought here that we need to be careful what precedents are set.

However, every person who votes in the Senate has countless opportunities to explain what their vote means and that essentially becomes the precedent. Likewise, during Trump’s second impeachment two of the Senators who had originally voted the trial to be unconstitutional had by the end of the trial voted to convict. That should say something that there is indeed a failure to demonstrate that there is no constitutional basis for the trial.

Nuanced Conclusions – Constitutionality of Trump’s 2nd Impeachment

All the above said leaves us with plenty to think about but I’d like to keep conclusions pretty simple. It’s clear there are multiple things to be concerned about that must be watched closely when evaluating the powers of impeachment.

However, it is also clear both in history and in today’s times that ultimately impeachment is handled as a largely political process. An elected body is in charge of it and their say does go. In the past, we saw a case where an official was impeached after resigning, then tried by the Senate (37-29 voted to hold the trial of Belknap). Today we see a President get impeached while still in office, leave the office for less than a couple weeks and the Senate is barely narrowly convinced of the constitutionality of the impeachment (which was a 55-45 vote).

The justification we keep coming back to for the need for impeachment power is accountability and justice. It seems contrary to that idea if an official can avoid harsher penalties by resigning or by doing bad things near the end of their term. In Trump’s case, he was accused of essentially leading a mob to hold hostage or kill his political opponents to keep himself in power in his final days. It seems obvious that the final days of a President’s term could be dangerous if that President were corrupt and if the President were more overt, it could be really difficult to hold him accountable. A President could order the same mob attack as Trump did but also pardon those who committed the offense, literally avoiding any consequences for an open attack on the government.

I think in consideration of all these perspectives the trial seems constitutional and the only reason to challenge it any further is if we thought the Congress would have too imbalanced a power if it could retain an ability to impeach a former official. I believe it impacts the balance of power less to impeach someone who has recently left office then it does someone who is currently in office, so I do not think that argument has merit. This leads nearly all my perspectives pointing towards obvious constitutionality in this trial.

The best solution here of course would be a Constitutional amendment and even though that seems unlikely we should consider the option more often. Perhaps we could add more terms to impeachment that are more specific. Clarify impeachment can happen for any offense committed while holding office. Then also perhaps even set a definite statute of limitations in the interest of fairness to the accused, as you would for a normal charge.

At least that’s what I’d do if I was a Founder in the Constitutional convention or someone lucky enough to be asked to draft a new amendment to the Constitution. Anyways, I feel this topic was just worth a quick look because it is only through rigorous contemplation and consideration of nuanced perspectives that we can avoid the hazards of the New American Myth we live in every day. Thanks for reading.