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What if I told you elected officials were trying to exercise powers they don’t have? Bad idea, right?
Donald Trump declared he had “absolute immunity” while president from any state-level criminal investigations. The Supreme Court rejected that assertion with a 7-2 vote last year.
President Barack Obama and Congressional Democrats claimed they had authority to force “Medicaid Expansion” in every state as part of the Affordable Care Act. And again on a 7-2 vote, the Supreme Court said “not exactly.”
It is human nature for those in power to try and expand their power. With politicians in particular, it happens all the time. That is why we are fortunate the Framers of our Constitution designed checks and balances. Like they did with the impeachment power.
Plenty of people — including a bevy of law professors, Sen. Susan Collins, and the BDN editorial board — have argued that the Senate may put Trump on trial despite his departure from office. They hang their hat mostly on the 1876 case of War Secretary William Belknap.
Belknap resigned from office shortly before the House voted to impeach him. The question went to the Senate. And, by a 37-29 vote, the Senate concluded they had the power to put Belknap on trial.
They asserted a power they didn’t really have.
And they did so again this week, voting 55-45 that they can place Trump on trial.
This isn’t about a “get out of jail free” card for Trump. It is much more important than that. It goes to a fundamental question about the structure of our nation.
An authoritative commentary on the U.S. Constitution was written by Supreme Court Justice Joseph Story. First published in 1833, it was lauded. John Marshall — former chief justice and author of Marbury v. Madison — declared it “a comprehensive and an accurate commentary on our Constitution, formed in the spirit of the original text.”
What was Story’s conclusion on impeachment after an official leaves office? No go. After all, the effect of a “guilty” verdict in a Senate trial is immediate removal from office. It isn’t discretionary; the Constitution is explicit: “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment …and Conviction.”
The “why” of the clause is, as always, informed by our history. Before the revolution, Parliament had the power, by majority vote, to impeach anybody, at any time, except the king. They also had the ability to convict people — without trial — by passing a “bill of attainder,” another explicitly forbidden practice in these United States.
So where does this leave Trump? Well, the Constitution speaks to that, too. If an official is convicted in the Senate and removed from office, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
If someone isn’t convicted and removed, but voluntarily leaves? Well, logic dictates that — once out of office — they too are “nevertheless liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Which lands us on the desks of Joe Biden and Attorney General-to-be Merrick Garland. Donald Trump is now a private citizen. If his actions on Jan. 6 violated the law, the executive branch may bring an indictment. They make that call. Trump retains the same rights as anyone to vigorously defend himself in a judicial process.
Could Trump be convicted in court and still run in 2024? Sure. That is the reason why some are pushing for a legislative trial. After “removing” the guy who already left office, the Constitution allows the Senate to ban him from running again.
Yet if Trump is popular enough to win another election, those supporters probably won’t take “the Senate said so” as a response to their electoral will. And if he wins? Call it the Buddy Cianci or Marion Berry strategy.
However, the Constitution restrains the federal government — in many facets and forms — from attempted overreach. Even if you believe Trump fomented insurrection, we abandon our founding document at our own peril. If a trial on his actions is to occur, it should be in court, not the Senate.
Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.