Impeachment and Our Legal System

The United States, along with other countries that were British colonies, operates under a common law system of justice. In a common law system the laws enacted by legislations are only the tip of the legal iceberg. The balance of law consists of lawyer-made law, previous judgments by judges. j Precedent is of vital importance in a common law system. In some cases the law simply does not apply and the case should be dismissed. Most European countries operate under a civil code system. In a civil code system the law always applies to the case and the role of a judge is to determine how it applies. Precedent is, therefore, less important.

I grew up in Missouri and my dad was a lawyer. As a consequence of that I may be more sensitive to this than others—Missouri and Louisiana are the two U. S. states in which civil code law is the most influential. Missouri at least has a sort of hybrid system.

The editors of the Washington Post disagree with the senators who believe that the Senate has no jurisdiction to impeach President Trump now that he’s left office:

HOUSE EMISSARIES delivered to the Senate on Monday an article of impeachment against former president Donald Trump, setting the stage for an unprecedented trial of an ex-chief executive. As they were sworn in as jurors on Tuesday, Republican senators appeared to be splitting into three groups: those arguing Mr. Trump’s actions do not warrant impeachment; those open to convicting him; and those claiming that the former president cannot be tried because he is no longer in office. It is with this last camp that Mr. Trump’s fate likely resides. Most GOP senators voted unsuccessfully on Tuesday to force a debate on the constitutionality of trying Mr. Trump.

Their theory — that impeachment applies only to sitting officials — is not beyond the pale. But it runs against the weight of scholarship, historical practice and common sense. Many Republicans may be embracing the theory nonetheless because it gives them an excuse to avoid any responsibility: They do not have to condone the former president’s incitement of the Jan. 6 Capitol invasion, but they also do not have to anger his supporters. Put briefly: They continue to indulge Mr. Trump’s toxic influence on their party.

They cite the case of William Belknap in 1876 but artfully elide over the fact that although the House impeached Mr. Belknap the Senate did not convict him and the reason given by many of the senators at the time was that although they believed Belknap was guilty of the offenses for which the House impeached him they also did not believe that the Senate had the constitutional authority to try him because he was then a private citizen and there is no authority to impeach private citizens.

I find the editors’ reaction a sort of mixed bag. They’re trying to find logic in the law which does not exist, assuming the law always applies to the case at hand, and ignoring the only precedent we have which acquitted, basically for lack of standing. The relevant passages are Article II, Section 4

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.

and Article I, Section 3:

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.

The present proceedings in which contrary to the Constitution another senator is presiding suggests to me that the members of the Senate are conflicted about their own authority in the matter. If they’re trying the president, the Chief Justice should preside. They have no authority to impeach private citizens. When the law doesn’t apply it doesn’t apply and such precedent as there is concurs with that. We do not have a civil code system. Basically, it’s a defect in the law which should be remedied.

11 comments… add one
  • walt moffett Link

    I agree the issue is moot, since Trump is no longer President. However, some folks out there won’t be happy until they have a cadaver synod and the chatterling class works how corruption of the blood and a bill of attainder are legal.

  • steve Link

    Its a waste of time. We do however need a way to keep people from getting back in office if we cannot impeach. The way our primaries are set up someone can win a nomination with a pretty small percentage of that party’s voters. OTOH, if people arent willing to vote maybe that is what we deserve. Incompetence and corruption but at least he is mean to liberals.


  • As I say if you don’t like the law change it. Don’t torture the law to suit what you want to do.

  • PD Shaw Link

    The concern here is that Roberts would decline if asked, which would probably be fatal even if Roberts couched it with enough ambiguity to allow the trial go on without him.

    Another issue under discussed is that there were competing legal theories as to when the House has impeached someone. Last year Noah Feldman, a Professor of Law whom Democrats called to testify before the House in support of impeaching Trump, argued there was no impeachment until presentment to the Senate. Of course, there were competing arguments, but while Pelosi was aware of this issue, she waited until after Trump was out of office to deliver the articles. There are state court decisions which support that interpretation. So now there is an issue with whether or not Trump was actually impeached.

    A lot of times strategy involves recognizing issues (even if one does not agree with them) and acting to avoid them.

  • PD Shaw Link

    I should have added that I don’t know that Roberts would decline, probably nobody knows. We also don’t know if this is a situation in which the Courts would get involved. A jurisdictional issue like this one (does the tribunal have authority over the subject matter?) is one litigated in Western legal systems that don’t have strong judicial review like ours.

  • That highlights my gripe, PD. The progressives in the Senate want a judiciary that’s strong enough to do what they want to accomplish but can’t or won’t persuade enough people of to enact legislation but they don’t want a judiciary that’s strong enough to keep them from doing what they want to accomplish. I see a contradiction there.

  • CuriousOnlooker Link

    I see articles saying Roberts doesn’t want to preside because he wants to shield the Supreme Court from politics. But it not about Robert’s desire, the constitution is clear on his duty.

    You also get a logical inconsistency.

    Trump’s status as an ex-official is immaterial as to whether he is liable through impeachment and whether the Senate can hold a trial. But Trump’s status as an ex-official is material as to who is presiding.

    I understand that the interpretation of the scope and procedures of impeachment are mostly left to Congress, but this is stretching the meaning of “interpretation”.

  • PD Shaw Link

    @CuriousOnlooker, I didn’t see that Roberts had declined. Maybe Schumer has thought this thing through to the obvious conclusion more than I have, but I think if I were him, I would not have asked if I thought he might decline, and if I did ask I would try to keep it a secret. Maybe neither is a sustainable tact.

    If Roberts had agreed to preside, it would have given more legitimacy to the proceedings, and Republicans will now play the referee on procedural issues. Leahy like most Senators in the Judicial Committee is far from the middle on policy, but maybe he has some respect. Chris Coons is the most bipartisan Senator in the Committee, but what if they thought outside the box and selected Romney?

  • CuriousOnlooker Link

    I didn’t say decline, it was Roberts does not want to do it.

    Here is a hypothetical which shows the strangeness. What if the House had presented the charges to the Senate on Jan 19th, so the trial began before Trump left office. There is agreement the Chief Justice would preside on the 19th. But under this interpretation, the next day, Roberts could stop presiding over the trial on the 20th.

    In the end, this strange theater is because no one wants to do the dirty work of holding Trump to account for his behavior post Nov 3rd. Neither Biden, Congressional Democrats, Congressional Republicans want to spend the political capital to do it.

  • Under our system law need not be logical. It only needs to be the law.

  • PD Shaw Link

    That hypothetical was raised in the Belknap trial. A senator asked Belknap’s attorney if a person’s term of office expired before the Senate entered judgement, has the Senate lost jurisdiction to decide the matter? His answer was yes, the Senate’s authority to render a judgment is dependent on having jurisdiction over the matter at the time it acts. Jurisdictional defects are known in judicial proceedings and they can result in absurd results.

    The House prosecutor’s position went further in the other direction. Since evidence of high crimes and misdemeanors might be concealed and not discovered until significant time has passed, impeachment can be brought at any time as there is no statute of limitations in the Constitution. Also, they dismissed the argument that this would turn Congress into a court of inquisition in which a party comes to power and seeks revenge on those out of power. The process is too time-consuming and laborious for such fears to be realistic.

    The Senators did not need to accept either position, there are numerous intermediate positions that could be taken. Each Senator is judge of the law and jury of the facts.

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