You may have gotten a traffic ticket and gone to traffic court, but you certainty have never been impeached, or tried by the Senate. There is a reason for that: The impeachment process is reserved by the Constitution to sitting officeholders. By seeking to apply this unique process to former President Donald Trump, who holds no government office, Congress is transgressing constitutional norms even as it claims to defend them. If Trump is suspected of inciting an insurrection — a serious crime — the place to prosecute him for it is a federal criminal court, with all the procedural guarantees every defendant deserves.
The Constitution provides that the impeachment process is to be used to remove “all Civil officers of the United States” — that is, people holding a government position. Yet in the case of Trump, the House is reading the Constitution as if it said the process applies to “all Civil officers of the United States, and people who aren’t civil officers, but once were.” Exactly what it does not say.
The Constitution guarantees everyone charged with a crime the right to a jury trial. The impeachment process is a very narrow exception, where trial is by the Senate. That is because the impeachment has a very particular punishment: the removal of the official from office. A criminal court can’t impose such a political punishment, and thus it is reserved to Congress. Given that removal is the primary punishment in a case of impeachment, applying the process to citizens not holding an office they can be removed from makes no sense.
Supporters of prosecuting Trump point out that on top of removal, the Constitution also allows disqualification from future office as a punishment — exactly the reason they are prosecuting Trump. They argue that by including the penalty of disqualification, the Constitution authorizes the process to be used against anyone who could be disqualified from future office — which is everyone. The argument is self-contradictory: One could even more easily argue that the process can only be used when the primary remedy, removal from office, applies.
It is important to emphasize what a massive departure from longstanding constitutional practice this week’s proceedings will be. In the entire 240-year history of the US Constitution, the House has only impeached one ex-official (he had resigned moments before), and questions about the constitutionality helped lead the Senate to acquit him. Congress did not even pursue the reviled Nixon when he entered private life, because it was understood he could no longer be impeached.
In the precedent being established against Trump, anyone who held any kind of political appointment in any administration, or even retired military officers, could be impeached decades later. Indeed, in Trump’s case, it is not like the accusations are based on anything that emerged after he left office. Nor is it a case where the accused dragged out proceedings until after his term, or resigned to avoid the trial. Quite the contrary, the House specifically waited to send an article of impeachment to the Senate until after Trump left office.
One of the great American traditions going back to George Washington is that a former president returns to private life and becomes a regular private citizen in all legal respects.
Whether Trump can be prosecuted without a jury, by a political body, is not a question about former presidents. It is a question about the rights Americans in general.
Eugene Kontorovich teaches constitutional law at George Mason University Scalia Law School in Arlington. Va.
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