The Constitution and the Trump impeachment trial
By David Adler
The forthcoming Senate impeachment trial of former President Donald Trump, sure to dominate headlines and newscasts, raises a host of constitutional questions with political implications likely to extend for years to come.
Last week, we reviewed the question of whether the Constitution permits the Senate to try a former president, and concluded that it does. In short, once the impeachment process has been initiated by the House of Representatives, its continuation and completion may not be derailed by a presidential resignation or the end of a presidential term in office. The impeachment power was established by the framers of the Constitution to hold a president accountable and, if necessary, convict him on charges of impeachable offenses and perhaps impose a ban on further service in an office under the authority of the United States.
President Trump and his defense team will, throughout the trial, continue to press the argument that a former president may not be tried, but he has lost that argument.
The Trump legal team, in its defense brief, also has asserted that the trial itself constitutes the constitutional prohibition against bills of attainder. This argument is without merit.
The Bill of Attainder Clause, found in Article I, section 9, bans a law passed by Congress that declares the guilt of an individual or class of people, and imposes criminal penalties, without benefit of judicial trial
The prohibition on bills of attainder reflects the framers’ hatred of the detestable English practice of passing attainders, with punishment that encompassed loss of life, limb, liberty and property. A bill of attainder violated the presumption of innocence and the right to a jury trial, undercut the principle of due process of law, and subverted the spirit of the constitution of a free society by declaring classes of people disqualified from exercising rights enjoyed by others. As a consequence, the Constitutional Convention adopted the Bill of Attainder Clause with little debate.
An impeachment trial, and the punishment imposed upon the defendant, however, is not a bill of attainder. Trump’s argument, therefore, is without merit.
A bill of attainder, first of all, is a “bill,” that is, a legislative measure passed by the House and the Senate, and signed into law by the president. An impeachment trial, on the other hand, does not require a presidential signature and, indeed, provides no role for the president. At bottom, the impeachment trial emphatically does not involve a Senate vote on, or passage of, a bill.
Any punishment imposed by the Senate as a result of an impeachment trial is, by definition, not a bill of attainder unless we wish to accuse the framers of having lost their minds in writing two contradictory clauses.
Delegates to the convention, after all, enacted the Impeachment Clause and the Bill of Attainder Clause within a narrow time frame and saw no contradiction between the two, because none existed.
The act of punishing the president by infliction of a lifetime ban on holding another office or trust under U.S. authority, flowed from conviction by two-thirds of the Senate, and not passage of a bill, which flows from majority vote in both the House and the Senate, and signature of the president, making it the law of the land.
One final issue, sure to provoke legal controversy, emerged on Thursday, February 4, when the House managers sent a letter to President Trump’s legal team, requesting that the president agree to testify, either before or during the impeachment trial, about his connection to the January 6 insurrection.
The letter does not demand an appearance from Trump, nor does it indicate that a subpoena is forthcoming. It notes that Gerald Ford and Bill Clinton testified before Congress after they had the left the White House. With that recent history, the House Managers explained, there should be no reason why former President Trump would not want to testify in his own defense.
Trump’s defense team will likely advise their client not to testify and further explain why he should not be convicted of incitement of insurrection. His GOP defenders in the Senate may not want him to testify since he may render himself more vulnerable to the charge of an impeachable offense through a less than impressive performance on the stand.
If Trump refuses to testify, it is possible for the Senate to issue a subpoena to compel his testimony. In an effort to thwart a subpoena, Trump’s lawyers may assert executive privilege, but that assertion has lost its force with the expiration of his presidential term. In any case, that argument fails to satisfy the grounds upon which the privilege has been invoked.
In the end, if Trump refuses to testify, the pressure on GOP Senators to convict him of incitement to insurrection will continue to build.