Why is the Constitutionality of an Impeachment and Trial when out of office not settled?

Question

The US Senate has voted 3 times, once in 1876 and twice in 2021, that impeachment and trial of an official who has left office is acceptable.

Despite this, Mitch McConnell voted to acquit Trump in 2021, apparently on the basis of this being unconstitutional.

Mr McConnell reportedly did not believe the Senate was right to pursue a trial, with CNN reporting sources close to the Senate minority leader saying he believed a Senate impeachment trial could not be held for someone who had left office.

Why is the constitutionality of the issue not settled by these votes? And if these votes are insufficient to settle the issue, how can it be resolved and why hasn't this avenue been pursued?

I’m voting to close this question because questions of constitutionality are better dealt with on Law. — gormadoc, Feb 15 '21 at 14:53
@gormadoc I asked a question on law SE about SCOTUS' authority to decide the constitutionality of an impeachment as such. — Peter - Reinstate Monica, Feb 16 '21 at 13:29
Your premise is false; McConnell simply used that excuse to avoid voting against Trump for self-preservation, while simultaneously holding press conferences about how criminal Trump was. McConnell was simultaneously dog-whistling to both sides. Welcome to DC; impeachment is not a legal process, it's a number game; like politics. McConnell is about survival, not principle. — smci, Feb 16 '21 at 23:32
Don't you think that's broadly because it's such a rare event? — Robbie Goodwin, Feb 17 '21 at 01:00
@RobbieGoodwin it would seem even more important for a rare yet extremely serious event to be well understood. — Jontia, Feb 17 '21 at 06:29
@Jontia Yes, it might… and while we all know the rarity is undoubted, the seriousness of the event is a matter of opinion. I do happen to believe it's serious and I suspect most who have a say will vote their party line, proving just how "serious" they think the issue is…
Meanwhile, why do you think the constitutionality of an impeachment might not be settled and while you're at it, how is the trial not an automatic part of the impeachment?

One might suggest the ending of office could preclude impeachment but why would out-of-office trial for in-office impeachment not be automatic? — Robbie Goodwin, Feb 18 '21 at 22:47
@RobbieGoodwin I think it's mostly the McConnell situation. Which can be summed up as "I'm ignoring the previous senate vote, this is unconstitutional and I vote not-guilty" followed by going on TV with the statement "Guilty, Guilty, Guilty". So it certainly appears unsettled enough to allow cover for this bizarre performance. — Jontia, Feb 19 '21 at 11:13

score 50 · Accepted Answer · edited Feb 14 '21 at 15:22

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Why is the constitutionality of the issue not settled by these votes?

Because Senate votes don't determine constitutionality and how the Senate conducts impeachment trials and why it does so in that manner is its own business.

And if these votes are insufficient to settle the issue, how can it be resolved and why hasn't this avenue been pursued?

It can't be resolved, because it's politicians stating opinions as to why they voted the way they did, it's not actually a binding determination of anything.

edited Feb 14 '21 at 15:22

phoog

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answered Feb 14 '21 at 11:05

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The week before the trial the Senate had a vote on the constitutionality of this trial. What was the point of that if individual Senators could simply vote according to their own opinion? – Barmar Feb 14 '21 at 16:20
@Barmar As a procedural matter, it established that the Senate considers the trial to be constitutional and thus the "it's not constitutional" argument is not a bar to proceeding. A different formulation of the vote could have established that the cold weather in D.C. right now is not in fact an omen by God to persuade them against going to trial, with the same effect. – Feb 14 '21 at 18:13
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Either it's constitutional or it's not. If it's constitutional for the purpose of going forward with the trial, how can it not be constitutional to vote to convict? – Barmar Feb 14 '21 at 18:19
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@Barmar There is no constitutional issue. Senators can vote however they want and are not constrained by any precedent. These claims to “unconstitutionality” are simply the Senators opinion and their personal justification for voting to acquit. A majority vote of the Senate that this impeachment was unconstitutional would have no more binding effect than the majority vote that it was constitutional. – divibisan Feb 14 '21 at 19:34
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It just seems like there should be something wrong with the Senate voting that X is true, then Senators voting against conviction on the grounds that X is false. But as you said, Senators are not constrained. It's up to their constituents to decide what they think of this behavior. – Barmar Feb 14 '21 at 19:38
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Which reminds me: They also take an oath before the trial that they'll rule impartially. We know how much credence they give to that oath, since most of them had their minds made up before both imprachment trials. It's hard not to become cynical about impeachments. – Barmar Feb 14 '21 at 19:39
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@ThisIsNoZaku , the question if it is constitutional could be permanently resolved - Congress could simply make and approve an Amendment that clarifies it. – Aganju Feb 14 '21 at 20:43
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Given that the group claiming it's unconstitutional to hold the trial after Trump left office is the same group that delayed the trial until after Trump was out of office, this is clearly a strategy, not an honest opinion. – BlueRaja - Danny Pflughoeft Feb 14 '21 at 22:29
@Aganju they could make an amendment, but then a future congress could just turn around and undo it. That’s not particularly permanent! – Tim Feb 15 '21 at 01:22
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@BlueRaja - Danny Pflughoeft I don't follow that comment. If they honestly believed that the constitution only permitted the vote while Trump was in office, then they might be shrewd to delay the vote until Trump left office. Why does that strategy show that they DID NOT, in fact, honestly believe that the constitution only permitted the vote while Trump was in office? A football team running down the clock in order to preserve their lead is not thereby proven to believe that the other team can score after the clock runs down. – Chaim Feb 15 '21 at 03:16
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Actually, Senate votes do determine constitutionality for impeachments, as mentioned here: https://politics.stackexchange.com/a/62176/10132 – pacoverflow Feb 15 '21 at 04:19
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@pacoverflow The problem is that that answer is, from a legal perspective, 100% incorrect. The courts determine constitutionality, not congress. The confusion arises from people misinterpreting the phrase "The Senate shall have the sole Power to try all Impeachments.". All that says is that the trial itself is held by the Senate. Whether or not a particular purported trial is within scope is a constitutional issue for the courts to determine. This is the problem with highly upvoted answers on a politics stackexchange for what should have actually been posted in law stackexchange. – JBentley Feb 15 '21 at 11:52
@JBentley personally, my confusion arises from the Senate voting on whether it was constitutional. As here. If they don't actually have the power to determine that, then why hasn't the branch of government that does spoken up to correct that? There's not a lot of point in having checks and balances if people don't do the checks. – Jontia Feb 15 '21 at 16:02
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@Jontia These are two separate powers. The Senate has the power to determine whether, and how, to hold a trial. Part of the "whether" can include devising a rule whereby the Senate votes initially on whether or not to proceed with the trial. Such a vote can be based on constitutionality, or what the weather is that day. The point is that this is merely an expression of opinion which operates within the internal rules for the trial. The Senate deciding that the trial is constituional or not, does not make it so legally - it merely determines that the Senate have decided to continue (or not). – JBentley Feb 15 '21 at 16:18
@Jontia By analogy, if you have a meeting at work to decide some issue (e.g. someone's salary), you might initially hold a vote to decide whether or not your meeting actually has authority over that decision (or e.g. if it is instead the remit of HR). But whichever way you decide, it is your company's rules and policies which determine that issue authoritatively: your vote at the meeting is merely a decision about whether to continue the meeting or not based on the majority's opinion. – JBentley Feb 15 '21 at 16:22
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@JBentley it would be a pretty bad system if then 40% of the room went on to decide that no pay rise would be awarded because they disagreed with the initial meeting vote. Most business processes would fall apart under such self contradictatory nonsense. – Jontia Feb 15 '21 at 16:46
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@Jontia Agreed, but in an organisation such as a company where everyone's goals are (at least to some extent) aligned, issues such as "does this meeting have authority to determine salaries?" are not so controversial that the majority is likely to come to the wrong conclusion. A Senate impeachment trial is fundamentally a flawed idea because it puts a political entity (the legislature) in charge of what ought to be a non-political issue (decided by the judiciary). So an initial vote of "is this trial constitutional?" is voted on based mostly on party affiliation instead of by legal analysis. – JBentley Feb 15 '21 at 16:50
@JBentley: spot on for just about everything, except whether impeachment’s are a flawed idea that should be handled by the courts. The US doesn’t have votes of no confidence, but impeachment’s serve roughly the same purpose. It exists to allow the legislative branch to remove members of the other two branches when they don’t feel they are doing their job. – jmoreno Feb 16 '21 at 13:30
@jmoreno I would be inclined to agree if the constitution was clear that that was the purpose of impeachment (not doing their job), but the problem is that the constituion refers to "Treason, Bribery, or other high Crimes and Misdemeanors", which effectively gives the legislature a quasi-judicial role. Ideally there would be two parallell processes: the legislature would be able to remove members of the other branches if they don't like what they are doing (a political decision by nature, made by a political body) while the judiciary should be able to remove for crimes (a judicial decision). – JBentley Feb 16 '21 at 13:37
@JBentley: except normal crimes (and even being in jail) is not a barrier to getting elected and holding office. – jmoreno Feb 16 '21 at 13:54
@jmoreno Agreed, but we're talking about whether it is flawed or not, as opposed to what the current situation is. I would argue that a president committing a crime while in office should be a barrier, even though it is not. In any case, the Constitution does envision removal for the vaguely worded "high crimes and misdeameanors", so the issue is again whether a decision of a judicial nature should be made by a political body which is free to disregard any and all legal merits in the process. – JBentley Feb 16 '21 at 14:39
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@Jontia "If they don't actually have the power to determine that, then why hasn't the branch of government that does spoken up to correct that?" -- The judicial branch doesn't work that way, they don't make decisions in advance. To get a ruling you have to bring a case before the court, the court has to agree to hear it, and then they decide. In particular, you have to demonstrate standing before the court system will even hear you--you have to show that a particular law or action actually harmed you specifically. You can't just say it might harm you in future or that you don't like it. – user3067860 Feb 16 '21 at 15:37
@user3067860 ah yes. Standing. The excuse of the US courts to not bother with difficult questions since, well I don't know when. If one branch can encroach on the competencies of another without challenge as much of the discussion here seems to suggest the the encroached branch must give up any pretence that it is a check on the power of the first. – Jontia Feb 16 '21 at 16:02
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@Jontia This wasn't really one branch encroaching on another, though...this was purely internal (to the Senate, not even to all of Congress). Nothing stopped the Senate from impeaching him except the Senate. Convincing someone to do something isn't the same as compelling them to do it. – user3067860 Feb 16 '21 at 16:18
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@JBentley: If I may ask, I understand the historical precedent that courts may determine constitutionality derives from Marbury vs. Madison; but what is the precedent that only the courts may determine constitutionality? – Lee Mosher Feb 16 '21 at 21:11
@LeeMosher "Constitutionality" is a matter of legal interpretation; a role which is exclusive to the judiciary. "Determine" means that it is a precedent-setting statement of what the law is; also a judicial role. The Senate voting on constitutionality is good example of this; such a vote does not bind anyone in the future and so is not a "determination". I can't provide you with a precedent for this because it is not an issue that is decided by the courts (in the same way that I can't provide you with a precedent which states that the Supreme Court is the highest court). – JBentley Feb 17 '21 at 10:20

David Siegel · Answer 2 · 2021-02-15T00:32:36.527

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First of all, none of the occasions (now three) when an impeachment has been considered by the Senate after the person impeached was no longer in office led to a vote of conviction. In each case, at least some Senators voted against conviction on the ground that the proceedings were not constitutionally authorized. If Trump, or any other official, had been convicted and disqualified after leaving office, that would have established a clearer precedent.

Secondly, because the Senate establishes its own rules of procedure, and no Senate can bind future Senates, which are free to adopt different procedures, and to handle impeachment in different ways.

Thirdly, because of Nixon v. United States, 506 U.S. 224 (1993). In that case Federal judge Nixon (a different person from President Nixon) had been convicted of and imprisoned for perjury, but refused to resign. Nixon was impeached by the House. A Senate committee looked into the matter, and delivered a report to the whole Senate. The Senate then voted to convict Nixon and remove him from office without holding any more formal proceedings or hearing witnesses. Nixon sued, claiming that this was not a "trial by the Senate" and did not meet the constitutional standard for dealing with an impeachment. As the Wikipedia article puts it:

The majority opinion, by Chief Justice William Rehnquist, held that the courts may not review the impeachment and trial of a federal officer because the Constitution reserves that function to a coordinate political branch. ... Justices Byron White, Harry Blackmun, and David Souter concurred, but voiced concern that the Court was foreclosing the area for review. While they found that the Senate had done all that was constitutionally required, they were concerned that the Court should have the power to review cases in which the Senate removed an impeached officer summarily without a hearing, or through some arbitrary process such as "a coin toss."

If the House were to purport to impeach, and the Senate to convict, a person who had never held federal office, Nixon v. United States would, on its face, prevent the courts from interfering. But in such a case of obvious overreach, I suspect that case might be distinguished and the courts might act. No such case has ever arisen, nor seems likely.

But an arguable case of procedure in an impeachment matter cannot be reviewed by the courts without overturning Nixon v. United States, so no court decision can establish the propriety of a Senate trial after the accused is no longer in office.

Note that the opinion by Justice White in the Nixon case (which agreed with the outcome, but not the reasoning of the majority view) incoluded the statement that:

In essence, the majority suggests that the Framers' conferred upon Congress a potential tool of legislative dominance yet at the same time rendered Congress' exercise of that power one of the very few areas of legislative authority immune from any judicial review. ... it is the Court's finding of nonjusticiability that truly upsets the Framers' careful design. In a truly balanced system, impeachments tried by the Senate would serve as a means of controlling the largely unaccountable Judiciary, even as judicial review would ensure that the Senate adhered to a minimal set of procedural standards in conducting impeachment trials.

This seems to confirm that the Nixon case denied any role to the courts in determining the propriety of impeachment proceedings. While that decision stands, the Court is unlikely to rule on what is or is not done in the course of Senate prodeedigns on an impeachment.

edited Feb 15 '21 at 00:32

answered Feb 14 '21 at 15:33

David Siegel

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"no Senate can bind future Senates". But what about the vote the week before the trial by the same Senate? Aren't Senators bound by their own decisions? – Barmar Feb 14 '21 at 16:19
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I agree with @Barmar it looks like a current Senate can't bind a current Senate. If Senators are free to explicitly ignore votes the Senate passes, doesn't this undermine rule of law? – Jontia Feb 14 '21 at 16:24
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@Jontia in this case at least it seems unenforceable. Any Senator voting to acquit based on the impeachment being unconstitutional after it had already been voted constitutional could easily hide that fact. – Ryan_L Feb 14 '21 at 16:30
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@Jontia A senate vote to proceed on an issue is not a law. Procedural votes are often reversed after negotiations. Technically, the later vote was merely a vote not to convict. The reasons that individual Senators gave for their votes form no part of the actual vote. (And are arguably disingenuous in at least some cases.) – David Siegel Feb 14 '21 at 16:30
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@Ryan However most did not hide it, they proclaimed it, as that avoid having to condone or condemn Trumps actions. – David Siegel Feb 14 '21 at 16:31
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Indeed, Mitch McConnell gave an impassioned speech stating that Trump was clearly culpable for everything he was accused of. But nevertheless, he voted to acquit because he didn't think the Senate had the right to convict him, despite what the Senate decided twice during this process. – Barmar Feb 14 '21 at 16:37
Choking on your first sentence. No connection between the final vote of the Senate trial guilty/not-guilty) and the question of the jurisdiction of the Senate to conduct such a trial. – BobE Feb 14 '21 at 18:56
If Nixon had demanded the right to testify it could have gone the other way. Note that the sixth amendment provides the right to call witnesses. There may have been no other but he could have called himself. – Joshua Feb 14 '21 at 19:00
@Bob E If a Senate trial of a person no longer in office had ever led to disqualification, it would be seen as having had "real effect" and thus more clearly estsablishign jurisdiction. In each case to date part of the reason for failure to convict seems to have been doubt by some senators of the propriety of the action. – David Siegel Feb 14 '21 at 19:00
@Joshua It is not at all clear that the sixth amendment right to call witnesses applies in a Senate Trial of an impeachment. All witnesses must be approved by a Senate Vote, at least in recent procedure. Again Nixon v US would seem to prevent any court ruling on such an issue. But I'm not aware of a case where an impeached official demanded a witness but was turned down by the Senate. – David Siegel Feb 14 '21 at 19:04
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I'm not so sure about your last paragraph in Nixon v. United States. As there haven't been convictions resulting in an individual losing the right to hold future office there's been no one with standing to sue. Wouldn't removing a person's right to hold future office create a new question for the courts where the courts could argue that the Senate had the power to try an impeachment, upholding Nixon v. United States, and also hold that the Senate had no authority to prevent the convicted individual from holding future office. – Dave D Feb 14 '21 at 19:24
@DavidSiegel is contempt of court a better comparison then? If a Judge told a jury they were to ignore something said in court and they later gave a press conference saying they voted based on that thing they would be held in contempt of court right? Is this not the same idea? Maybe TV shows aren't the best way to understand jury trials though... – Jontia Feb 14 '21 at 19:35
@Dave D. Not correct. West Hughes Humphreys (1862), Robert Wodrow Archbald (1912), and Thomas Porteous (2010) were convicted by the Senate and disqualified from holding future office, as the Constitution specifically permits. Any of them had standign to contest this. AFAIK none did. The specific constitutional authorization would seem to settle any issue on that point. – David Siegel Feb 14 '21 at 19:37
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@Jontia No TV shows are often not good sources of law or legal procedure. I don't think the analogy is at all close. . in any case, it is established that a jury's motives and reasons for its decision are not subject to later inquiry, the only exception being a case of bribery of a juror. So such a case would not lead to a contempt action. – David Siegel Feb 14 '21 at 19:42
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@DavidSiegel - I understand the constitution permits exclusion from holding future office. The question I'm asking, though, is related to this specific question - a person is convicted in a Senate trial after leaving office. To clarify my comment, there's been no one convicted and barred from future office after the person vacated the position from which they were impeached. As such, there's never been anyone with standing to raise the constitutional question. Trump may have been able to raise the question before the Senate trial but his confidence in acquittal would have made it unnecessary. – Dave D Feb 14 '21 at 19:50
@Dave D Ah I see. Actually I don't think that Trump would have had standing before the final Senate vote; he would not then have suffered any "actual injury"., which is required for standing. Besides, any such suit, before a Senate vote or after a conviction and disqualification would need to overcome the * Nixon v. United States* case which essentially said that nothing about the procedure for the trial of an impeachment is subject to judicial review -- the whole thing is a "political question" and off-limits for the courts. – David Siegel Feb 14 '21 at 21:34
Surely there is a difference between the supreme court essentially saying "the senate gets to decide what consituties a trial, we dont have a say" as they did in Nixon, and saying "this isnt a person you can impeach" as I imagine they would say if the senate tried to vote on my impeachment to prevent me from holding future office, for example, as I have never held any public office in my life. Nixon doesnt clearly set precedent here. This question is closer to the question at hand than what Nixon addressed. (Obviously with some important differences) – Matt Feb 14 '21 at 23:54
@Matt Se my recent additions to the answer. – David Siegel Feb 15 '21 at 01:18
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@Matt Yes. Another way to make the comparison is: "Was the outcome of the trial valid?" (not something the courts can look at) vs "Was it an impeachment trial at all or something else?". If the latter then the entire premise of the trial is in question since Article I, Section 3 of the constitution only refers to the Senate having "the sole Power to try all Impeachments.". If one can succesfully argue that trying a former President is not an impeachment trial (due to the seeming contradiction with Article II, Section 4), then it seems to me to be distinguished from Nixon. – JBentley Feb 15 '21 at 17:07
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@Barmar: Re McConnell's "impassioned speech", do you really think he honestly believes that? To me, it seems blatantly obvious that he's simply trying to serve two masters. When he runs for re-election, he can tell the Trump supporters among the voters that he didn't vote to convict, and tell everyone else that he said nasty things about Trump. In a word, hypocrisy. – jamesqf Feb 15 '21 at 18:10
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@jamesqf Actually, I kind of did believe it. I've heard reports that in private he hated Trump. He supported him as long as Trump helped his agenda, like packing the courts with conservatives. But he still considered him a blight on the GOP. This was the closest I think he's come to speaking his heart since Trump took office. – Barmar Feb 15 '21 at 19:31
@jamesqf There is no telling what he privately thinks, but it is at least possible that he is being sincere on the procedural issue. If I were in the Senate (wildly unlikely) I might have voted not to proceed, although i would have voted to convict Trump on the first impeachment. – David Siegel Feb 15 '21 at 22:27
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@David Siegel: That's perhaps the problem, because I (and I think most people) really can't see how there could possibly be an honest doubt as to the Constutionality. Which leads to the conclusion that those Senators claiming there is are simply looking for an easy out. – jamesqf Feb 16 '21 at 06:50
The Nixons have really worked hard collectively to go down in impeachment infamy. – ohwilleke Feb 16 '21 at 16:32

jmoreno · Answer 3 · 2021-02-16T02:11:15.637

Short answer: because courts (and the US Supreme Court in particular) rarely rule on hypotheticals, and nobody has ever been successfully impeached while out of office and then challenged that decision. Until that happens, the matter will remain undecided.

Slightly longer, assuming that it had been challenged and ruled constitutional, all that would change is that when some members said they believed it to be unconstitutional, they would have slightly less credibility. Members (and others) can believe that a decision was decided incorrectly. Most famously, Dredd Scott v Sanford, many people at the time and just about everyone today, would say that it was wrong, and AT THE TIME AND UNDER THE LAWS THAT THEN PREVAILED, it was wrongly decided. Having decided that the case was decided incorrectly, they could continue to say and vote however they pleased. All that changes after a challenge and ruling upholding such an impeachment would be that the next person so impeached would have little to no chance on making an appeal. At the moment, an appeal would almost certainly be heard. So, the real effect of such a hypothetical ruling on even more hypocritical future impeachment’s would (a) make such impeachment’s more likely, and (b) make an appeal less likely to be heard.

The Supreme Court doesn't just rarely rule on hypotheticals, they have a long standing interpretation of the U.S. Constitution that forbids them, jurisdictionally, from doing so. https://en.wikipedia.org/wiki/Case_or_Controversy_Clause — ohwilleke, Feb 16 '21 at 16:33
I'll note that the lower courts are not quite as strict about this. E.g., a cease-and-desist letter is often sufficient to demonstrate controversy, even if the sender of the C&D letter has not yet involved the courts. https://en.wikipedia.org/wiki/Declaratory_judgment — Brian, Feb 16 '21 at 18:02

score 2 · Answer 4 · answered Feb 15 '21 at 23:49

The constitution isn't a rulebook to cover every single possible scenario. Impeachment as written covers "presidents". But that is narrow in scope and does not represent any potential timelines when it can be used.

There isn't specific text regarding impeaching someone out of office or a former president or when impeachments can be held or when an impeachment is not valid.

So, it can be interpreted as someone sees fit from a political and/or moral prospective. Literally, as words on the page, or more broadly, or somewhere in between.

Broadly, impeachment was taken from the English who regularly did impeach several officials once out of office. Also, English practice suggests an emphasis more on punishment, as disqualification from future office than on removal.

In 1787 there were several convention debates on the matter which suggest a broader scope of impeachment. Keep in mind at that time there were no presidential limits, so the founders wanted to keep the president in check for bad behavior. They also discussed election shenanigans and agreed that impeachment ought to be used for those scenarios as well, whether in office or not. But details were not laid out succinctly in the document itself.

Why is the Constitutionality of an Impeachment and Trial when out of office not settled?

4 Answers4