Senators face separate questions of ‘can’ and ‘should’ in Trump’s trial

The Senate is scheduled today to debate and vote on whether it has the power to try an ex-president. There is not much suspense. It seems clear that a majority of senators will vote that the Senate does have jurisdiction and President Trump’s trial will continue. At the same time, most Republican senators are poised to vote against jurisdiction. Because conviction requires two-thirds of the Senate, not a simple majority, this will portend an acquittal for Trump at the end of the trial.

For many Republican senators, using this constitutional technicality will be an attractive option because it will let them thread a needle. They can placate Trump’s base by voting to acquit him, without antagonizing moderate and independent voters by defending Trump’s actual conduct. But senators who are determined to acquit Trump on a technicality can do so without hobbling the Senate in the process. 

The Senate actually will decide two separate questions: One, is it constitutional to try an ex-president? Two, is it proper in this case?

In other words, “can we?” and “should we?” are distinct.

Senators who support Trump can say “no” to question two without saying no to question one. In other words, they can vote that the Senate has jurisdiction to hold the trial but still vote to acquit Trump on the grounds that he is already out of office.

Question two — should Trump himself be tried and convicted given that he has left office? — is a matter of fact, the kind that varies from case to case. Senators are free to exercise their own judgment on this question. While most senators appear to agree that it is important for Trump to be convicted and disqualified even though he has already left office, plenty are taking a different view of Trump’s circumstances — a Republican view of the circumstances, one might say.

But question one — is the Senate allowed to do this? — is a matter of constitutional law, not circumstance. The Constitution is the same whether the person being impeached is a Republican or a Democrat. In answering question one, then, Republican senators should think more abstractly about the precedent they are setting. To do so, they should imagine how they would react if, near the end of a term in office, a Democratic president did something Republicans would find impeachable (say, pardoning all activities associated with the Antifa movement). Would they say that Congress was powerless to impeach and to try such a president? Turning the partisan tables like this is an easy way to make an honest assessment of what the Constitution’s neutral principles actually require. The alternative is to engage in the unfortunately common practice of using “unconstitutional” as a synonym for “things I dislike” and to latch onto whatever legal interpretation delivers a happy result. 

Of course, there is no law requiring senators to be consistent. Having voted against jurisdiction in Trump’s case would not bar a senator from shamelessly flip-flopping and voting for jurisdiction in a future case against a Democrat. But there is a reason besides shame for senators to avoid such inconsistency: A bipartisan vote in favor of jurisdiction in the first case would set a stronger precedent and make it harder for the other side to flip-flop and vote against jurisdiction in the second case, even if they held a majority. This, in turn, would strengthen the deterrent value of impeachment, making it clearer to presidents that they could face costs for abusing their powers near the end of their terms.

On a more practical note, a majority is going to vote in favor of jurisdiction and there will be a trial, just as there was for three months in 1876 when former Secretary of War William Belknap was impeached and tried. This calls to mind Mark Twain’s supposed reply to the question of whether he believed in infant baptism: “Believe in it? I’ve seen it done!” Rather than vote against the Senate’s power to do something that it has, in fact, done and is about to do again, it would make more sense for Republican senators to concentrate on question two.

Of course, all of this presumes that the majority is correct that the answer to question one is “yes,” and that the Senate does have jurisdiction. I wrote a law-review article in 2001 that laid out all of the evidence I could find on late impeachment and concluded that it was constitutional for Congress to pursue official misconduct even after the offender had left office. At the same time, the article recognized the wide gulf between “can they?” and “should they?” Because it will only rarely be worth pursuing a late impeachment case, most people who resign are not pursued any longer. In such cases, Congress has often taken pains to make this “can vs. should” distinction clear, saying that it was only choosing not to proceed — not considering itself unable to proceed. Members recognized that a case might arise in the future in which a late-impeachment case was worth pursuing and that Congress needed to preserve its power to do that. 

Democrats have concluded that Trump’s case is a late impeachment case worth pursuing. Some Republicans apparently agree. But even if the rest of the Senate’s Republicans disagree about Trump’s case, they should be reluctant to conclude that there will never be a late impeachment case worth pursuing. As such, they should protect a future Senate’s power to pursue such a case.

Brian Kalt is a law professor and the Harold Norris Faculty Scholar at Michigan State University. He is the author of “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.”