Can the Senate Hold Impeachment Trials of Former Officers of the Government? A Look at Two Precedents

On January 14, 2021, President Donald Trump was impeached a second time, with the charge being that he incited the riot of January 6th, in which several hundred fringe right protesters stormed the U.S. Capitol, with four of them dying and one officer being murdered. Additionally, his call with Georgia Secretary of State Brad Raffensberger was added. While whether his words in the speech being incitement would hold up in court is questionable given that most of the rally participants didn’t storm the Capitol and that there was no direct call to violence, what is not questionable is that Trump pushed a most destructive lie in his “Stop the Steal” media campaign: that the election was stolen from him on account of voter fraud, and that the storming of the Capitol wouldn’t have occurred without this lie and the rally. However, since the Senate reconvenes on January 19th, it is impossible that a trial will be held before he leaves office the following day. Thus, the question here is, can the president be impeached after he has left office? On a national scale, there are two precedents that we can consult.   

Precedent #1: William Blount, 1797.

William-blount-wb-cooper.jpg

The first precedent that can be cited is the case of Senator William Blount of Tennessee. Blount, who had been a signatory of the U.S. Constitution, found upon being elected one of Tennessee’s first two senators that his ventures into land speculation had placed him deep in debt, and only his position as a senator had kept him out of debtor’s prison. He thus hatched a scheme to address this problem with Great Britain, which was currently at war with Spain, and the latter was rumored to be selling Florida and its New Orleans territory to Revolutionary France. Blount conspired to lead a group of white settlers and Choctaw Indians to conquer these lands and turn control of them to Britain, thus raising the depressed value of his land. An incriminating letter written by him managed to make it into the hands of President John Adams, who sent a message to Congress that was read aloud, to Blount’s horror. The Senate voted to “sequester” his seat, which was de facto expulsion, by a 25-1 vote on July 8, 1797 for his violation of US neutrality law. However, they also wanted to impeach him and tried to have him brought back to the Capitol, but Blount was under protection in Tennessee. The proceedings occurred in his absence, and his defense argued two points, that senators were not “civil officers” under the Constitution’s impeachment clause and that since Blount was already expelled that he was no longer under the jurisdiction of the Senate.

Blount’s impeachment was dismissed 14-11 on January 11, 1799, with all Jeffersonian Republicans voting to dismiss and Federalists voting against 7-11. The Senate had found him to not be an impeachable officer. Whether the senators had agreed with one of or both of the defense’s arguments is in question. No member of the legislative branch has been impeached since, with expulsion being the chosen method since of kicking them out of office. Despite Blount having been an expelled senator, he managed to continue having a political career in his home state, whose residents didn’t seem to mind that he had engaged in such a scheme. Future President Andrew Jackson, for instance, remained a loyal supporter. He served as speaker of the Tennessee Senate from December 3, 1798 until his death from an epidemic on March 21, 1800.

Precedent #2: William Belknap, 1876.

William W. Belknap - Wikipedia

The second precedent that can be cited is William Belknap. Belknap was President Ulysses S. Grant’s Secretary of War from 1869 to 1876 and was one of the reasons his administration became notorious for corruption. He regularly threw lavish parties in Washington that brought into question how he could afford to do so. On March 1, 1876, the House’s Clymer Committee, which had been set up to investigate Belknap, discovered a reason why. In 1870, he crafted an arrangement after he appointed at the behest of his wife Carita contractor Caleb P. Marsh as head of the trading post at Fort Sill in the Oklahoma Territory despite John S. Evans already being appointed to the post. This permitted Evans to remain head provided he allocate $12,000 in annual profits to Marsh, while Marsh had to pay half the sum to Belknap’s wife. After his wife and their child died, Belknap received the payments, and after marrying his late wife’s sister, Amanda, they shared the $6000. The House promptly drafted the impeachment and on March 2, 1876, Belknap tearfully handed his resignation to President Grant minutes before he was unanimously impeached. Despite his resignation, the Senate decided to consider an impeachment trial. All senators were agreed that he had accepted kickbacks from Marsh, but the question was whether an officer of the government could be impeached after having left office.

On May 29, 1876, the Senate voted 37-29 to declare as its opinion that Belknap could be impeached after he left office. Democrats voted 24-2 that this could be done while Republicans voted 13-27 against. However, although the majority of senators voted for all counts of impeachment none reached the needed threshold of 40 votes, and it failed on August 1st based on the objections as to the constitutionality of it by the minority. Belknap never held public office again yet remained popular with the veterans of his home state of Iowa and died in 1890. Perhaps if the Senate had mustered 40 votes for conviction, this would have been a decisive precedent and we wouldn’t be debating this today. Also interesting to note is that if Democrats vote in the case of Trump that this is proper and Republicans vote against, it would reaffirm their old positions about late impeachments.  

What we have here are two deeply unsatisfying precedents even though they involve two clearly guilty men. While Blount’s case was dismissed by the Senate, this could have been that senators didn’t think that members of the Senate were part of the definition of “civil officers” under the Constitution and not because they thought late impeachments were unconstitutional. The Belknap case is a bit more revealing as it deals with a cabinet officer whose trial took place after his resignation and doesn’t have the added complication of him being a senator, and although the Senate officially opined that it could be done, not enough senators agreed this was constitutional to warrant a conviction. We have a precedent for the Senate holding such a trial, but no consensus on whether this action was constitutional. After all, it’s not like Congress hasn’t acted in ways that were found unconstitutional before.

The division as to whether late impeachments can be tried by the Senate doesn’t seem any less divided now than it was 145 years ago: law professor Cass Sunstein and former appellate Judge J. Michael Luttig hold that late impeachments are not constitutional, while law professors Michael Gerhardt and Brian Kalt hold that they are, with the former believing that the impeachment itself must have happened while the officeholder was in office. What we have never seen, and what would be truly satisfying as a precedent, would be a conviction or a judicial ruling on whether this is constitutional. However, the Supreme Court has not been willing to intervene in Senate impeachment convictions so far: in the case of Nixon v. United States (1993), in which Judge Walter Nixon challenged his impeachment conviction for perjury, the court unanimously ruled that the matter was a political question and not subject to Supreme Court review, although some of the more liberal justices left open in a concurrence whether an “unjust” impeachment conviction could be appealed. This suggests that whether an impeachment trial is constitutional is almost if not entirely up to the Senate itself. In conclusion, this is a major gray area, and I cannot say I’m decided on which is right here.

References

Eschner, K. (2017, July 7). This 1797 Impeachment Has Never Been Fully Resolved. Smithsonian Magazine.

Retrieved from

https://www.smithsonianmag.com/smart-news/1797-impeachment-has-never-been-fully-resolved-180963926/

Folmsbee, S.J. (1979). Blount, William. NCpedia.

Retrieved from

https://www.ncpedia.org/biography/blount-william

Fowler, R. (2019, February 27). Blount on the Run. Tennessee Bar Journal, 55(3).

Retrieved from

McFeely, W.S. (1981). Grant: A biography. New York, New York: W.W. Norton & Company.

Nixon v. United States, 506, U.S. 224. (1993).

The Expulsion Case of William Blount of Tennessee (1797). United States Senate.

Retrieved from

https://www.senate.gov/about/powers-procedures/expulsion/Blount_expulsion.htm

The First Impeachment. United States Senate.

Retrieved from

https://www.senate.gov/artandhistory/history/minute/The-First-Impeachment.htm

War Secretary’s Impeachment Trial. United States Senate.

Retrieved from

https://www.senate.gov/artandhistory/history/minute/War_Secretarys_Impeachment_Trial.htm

Weiss, D.C. (2021, January 13). As House impeaches Trump for second time, some say Senate trial after his presidency is unconstitutional. ABA Journal.

Retrieved from

https://www.abajournal.com/news/article/as-house-impeaches-trump-some-contend-senate-trial-after-trump-presidency-is-unconstitutional

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