The Constitutionality of Convicting a Former President for High Crimes

8 mins read

Even though a majority of the U.S. Senate concluded that they have jurisdiction to try a former president, some Republican senators continue to maintain that the Senate lacks that power and will acquit Donald Trump solely on that basis. They argue that a process for determining whether someone should be removed from office has been rendered moot because the person is already out of office. 

Contrary to what some commentators consider to be prevailing wisdom, a Senate impeachment trial is actually not about determining whether an impeached president should be removed from office. The GOP senators erroneously conflate conviction with removal. Conviction and removal are two distinct, separate processes, and that makes all the difference in the world. 

Under the Constitution, the House of Representatives first decides, by majority vote, whether to impeach a president for having committed a “high crime or misdemeanor.” While Trump was still in office, the House passed the article of impeachment for his actions inciting his followers to storm the Capitol. The process then shifts to the Senate for a trial to determine whether an impeached president should be acquitted or convicted of a high crime.

As Professor Laurence Tribe contends, if the Senate determines that a president committed a high crime, it is a conclusion that he abused his power in such a way that he is patently unfit to hold office. However, a determination that a person is unfit to hold office is not the same thing as removing that person from office.

It’s like the difference in determining that someone sexually harassed a co-worker versus firing that person for that sexual harassment. In a workplace, an employee may be found to have sexually harassed a colleague but not removed from his position. Under the impeachment clause, however, the Senate has the power to determine guilt or innocence, but the decision to fire is completely taken out of their hands by the Constitution. It demands that a conviction lead to removal. As odd as it may sound, then, the Senate actually has no say at all regarding removal once a conviction takes place. 

Conviction versus Removal

How so? The answer lies within the constitutional text. The Impeachment Clause of Article II clearly makes a distinction between conviction and removal. It states, “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors.” Removal occurs upon conviction so removal is itself not conviction. Changing just one word in the clause illustrates the distinction. Substitute the word “may” for “shall” in the clause. If a president may be removed upon conviction, that tells us that removal requires a second determination to be made after the Senate has decided to convict. Two different processes. 

Conviction is about whether Trump is unfit to hold office because he committed a high crime, while removal is about stripping a convicted Trump of his future presidential powers. Conviction is about determining culpability, while removal is about sanctioning someone who’s already been found guilty.

Another way to understand the distinction between conviction and removal is to understand that the framers could have provided different options upon conviction besides or in addition to removal. For example, the Constitution could have authorized the Senate to suspend a convicted party.

The distinction between conviction and removal is important because it helps to answer the question about the Senate’s jurisdiction to try an impeachment case when the sanction of removal is off the table. If the impeachment trial were only about the decision to remove, then, yes, when the party is no longer in office, a trial becomes pointless. But because it is a mechanism for determining fitness for office, there are other reasons for holding an impeachment trial.

First, a determination of unfitness for office still has consequences for the convicted party. The Constitution grants the Senate the sentencing power to disqualify the convicted party from ever holding federal office again. 

Second, there is value to determining whether a president’s misconduct rendered him unfit to hold office. A conviction or acquittal has value for history as precedent, as a statement about this nation’s values and principles, and as a mechanism for providing closure.

Implications of Conviction

Historically, presidential impeachments have been exceedingly rare. Only three presidents have been impeached, and none yet have been convicted. The rarity highlights the historical significance of impeachments and the first-ever conviction — regardless of removal from office. A Senate conviction will have long-term historical implications. Think about it this way. What if Richard Nixon had not resigned and was instead impeached and convicted? That would have indelibly reshaped American political history. 

A conviction or acquittal based on misconduct rather than for lack of jurisdiction has value as precedent. It provides guidance to future presidents and the nation about what kind of conduct is evidence of unfitness to hold office. For example, President Bill Clinton’s acquittal by the Senate on the merits provides a basis for determining whether misconduct by a current president is or is not more egregious than Clinton’s misconduct.

A determination on conviction or acquittal helps shape this nation as it perpetually seeks to form a more perfect union, clarifying this nation’s values, priorities, and principles. And because a determination that a party committed a high crime requires two-thirds of the Senate to vote to convict, that decision is in effect a truly national decision. It is the Senate speaking on behalf of the entire nation about whether a party is unfit for office. The Senate trial and the decision whether to acquit or convict is a means of better understanding for what this nation stands. A decision on conviction or acquittal reinforces the rule of law and democracy. 

Finally, a determination of conviction or acquittal provides meaningful closure to the impeached party and the nation. Imagine if Clinton, right after impeachment by the House of Representatives, had concluded his term of office so the Senate had not held a trial. It would have been much more difficult for this nation to move on, and lingering questions would have existed well into the future. 

Ultimately, whether the Senate acquits or convicts Trump, they should do so on the merits, not on jurisdictional grounds. The Constitution demands it. 

Image by Wynn Pointaux from Pixabay

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Reginald Oh is Associate Director of The Loyal Opposition. His primary focus is on issues relating to constitutional law, the protection of vulnerable communities, and the reduction of political polarization in America. A law professor at the Cleveland Marshall College of Law who teaches constitutional law and legal ethics, Reggie’s scholarship is focused on the meaning of equality under the Fourteenth Amendment Equal Protection Clause. His current research focuses on the central role that dehumanization plays in fostering inequality and discrimination, and the possibility for law to counter it.
Reginald is on the Board of Directors for DemCast.

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