SUPREME QUESTIONS

 

 

Article I, Section 2:

 

The House of Representatives ...  shall have the sole power of impeachment."

Article II, section 3:

"The Senate shall have the sole power to try all impeachments. ... When the President of the United States is tried, the Chief Justice shall preside ... .

 

Question 1.

 

Does the power to impeach a President terminate when his term of office expires? The answer seems simple, but it is not. The Constitution does not specifically bar impeachment subsequent to the termination of incumbency. No court has ever ruled on the question but there is Congressional precedent. In 1876, one William Belknap was Secretary of War under President Ulysses S Grant. Belknap was accused of taking bribes, and the House commenced an impeachment inquiry. Belknap resigned before the House proceedings were concluded, but the House impeached him anyway. The matter then went to the Senate, which tried Belknap. A majority of the Senate voted to convict, but he was acquitted for lack of a 2/3 super-majority.

 

Now the House of Representatives threatens to impeach Trump for incitement of sedition and rebellion. They can certainly accomplish that between now and January 20. But can the Senate take the matter up when it receives the House's Bill of Impeachment? Because of the Senate's internal resolutions, it may not be able to receive the Bill of Impeachment until January 19. Will the new Georgia Democratic senators be sworn in by then? Will McConnell still be the majority leader? Presumably, Pence could still break a tie if the Senate is split 50-50, but McConnell may no longer have control of his caucus. Even if there are still only 48 Democratic Senators, at least three Republican Senators have given strong indications they might vote to convict Trump, or at least proceed with a trial.

 

All of the foregoing suggests that if the House impeaches Trump before January 20, a trial in the Senate would likely occur subsequent to the end of the Trump presidency. The Constitution provides that "when  the President of the United States is tried, the Chief Justice shall preside."  What if Schumer notifies Roberts of the forthcoming Senate trial, and Roberts refuses to preside? Can he unilaterally rule against the Constitutionality of a post-incumbency impeachment trial by his refusal to preside?

And if Roberts does preside, what would the Court do if Trump challenged the proceedings? Would it violate its oft-cited rule about respecting the autonomy of the other political branches of government? Would it address the merits? Would it defer until after the Senate vote (assuming an acquittal) on the ground of "no harm, no foul?"

If Trump were to be convicted by a 2/3 vote, experts have opined it would take only a simple majority vote to bar him from ever again holding federal office. What would the Court do then?

 

 

Question 2.

 

Article II, Section 2:  

 

"The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." 

 

If there were ever any doubt that Trump will attempt to pardon himself, there can be none now. He is clearly guilty of incitement. He is clearly guilty of conspiracy to encourage sedition. He may even be guilty of felony-murder.

 

Does the President have power to pardon himself? Academicians are divided. Prevalent is the view adopted by the Supreme Court in Nixon: "No man is above the law," which would lead to the decision that a President could not pardon himself. But a "textualist" judge might well come to the opposite conclusion.

 

What will the "Trump Court" say?

 

While question number one is remote,  this one is not.

 

Question 3.

 

And would Justice Thomas recuse himself, given his wife's endorsement of the march on the Capitol to demand Congress overturn the election? (Two days later she amended her post by noting she sent her "love" to the demonstrators before the violence occurred.)

 

A bientot.

 

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