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Does the Chief Justice Preside over an Ex-President's Impeachment Trial?

Added 01-15-21 08:21:02am EST - “Conflicting signals from the Belknap impeachment” - Reason.com


Posted By TheNewsCommenter: From Reason.com: “Does the Chief Justice Preside over an Ex-President's Impeachment Trial?”. Below is an excerpt from the article.

President Trump has been impeached, and the trial seems unlikely to begin until he is no longer the President. There is some dispute about whether the Senate can try an impeachment of an ex-official. But it has done so in the past, most famously in the case of ex-Secretary of War William Belknap, and for reasons adequately covered by others I think that is proper.

If it does, there comes a secondary procedural question. Who presides? According to Article I, Section 3, normally "The Vice President of the United States shall be President of the Senate," and in her absence, other Senators preside. But "When the President of the United States is tried, the Chief Justice shall preside." Should we think of the trial of ex-President Trump as the trial of a President?

I started reading through the Belknap Senate trial and quickly came across conflicting clues. It seems to me that the answer to this question depends on the precise theory under which ex-Presidents can be impeached, and both theories were mentioned during the Belknap trial.

One theory is this. Technically, there is no restriction on who may be impeached and tried by the Senate. Article II says 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," but that provision technically establishes one of the consequences of impeachment—removal—it is not the impeachment power. The impeachment power is contained in Article I, and says "The House of Representatives … shall have the sole power of impeachment" and "The Senate shall have the sole power to try all impeachments." That is the impeachment power, with no limit on who can be impeached.

The other theory is this. Impeachments of ex-officers are permitted because impeachments of officers can't be defeated by the resignation or departure of the officer. Otherwise, officers could evade the Senate's judgment, and most importantly, could evade the Senate's power to impose disqualification from future offices, a power expressly mentioned in the Constitution. This theory might not extend to the impeachment of private citizens, etc., but it would allow impeachment of ex-officers as an extension of the power to impeach and disqualify officers.


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