Although the text of the Constitution does not specifically address whether the Senate can bring a former president to justice, evidence from English practice, state constitutions, the Constitutional Convention, and federalist papers – all of which are core sources of originalist legal arguments – suggest that that its authors wholeheartedly expect the Senate to use its power in this way. As MP Jamie Raskin (D-Md.) Argued on Tuesday that the Framer had not created a “January exception” for abuse of power by the president – meaning the president would not be given a free pass for actions that were close to his departure committed to the Office – he reiterated the arguments put forward by the authors (as well as the arguments that made them conspicuous Not make) in their debates in Philadelphia when they drafted the constitution.
Ahead of Trump’s trial in the Senate lots legal Scholars made coherent historical arguments in the same direction. The Trump team, following a small number of commentators, focuses on a narrow textual approach: the impeachment clause says “President”, not “Former President”, end of story. A look at the details of what the founders really discussed and how they felt about impeachment makes this point seem painfully narrow at best and, at worst, deliberately denying the founders’ understanding of the power and purposes of impeachment.
The founders did not invent impeachment. As Hamilton wrote in the Federal papersAs the core source of the original meaning, the Framer “borrowed” the model from English. And as Raskin pointed out, every English impeachment during the lifetime of a former officially. During the convention debates on impeachment, George Mason mentioned the impeachment of Warren Hastings, a former British civil servant in India, which began in the summer of 1787. No delegate raised concerns about their inappropriateness. No early state constitution prohibited prosecution against a former civil servant – and indeed did Delaware allowed its manager to be charged just “When he’s not in office.” Early state constitutions are usually central evidence for originalists. English and early American practice suggest that the emphasis is more on punishment – for example, disqualification from future office – than on removal.
In the 1787 convention debates recorded by James Madison, four convention delegates explicitly discussed the potential problem of incumbent presidents at the end of their term of office using their power to be re-elected. Some of them specifically mentioned that electoral fraud and manipulation of the electoral college could lead to impeachment. Trump’s lawyers conveniently ignore these debates, but they do House letter spent about four pages with and quoted a blog post I wrote about the convention debates on January 16.
The details of how the founders discussed impeachment are remarkable – and they damn well indicate late-stage behavior like Trump’s. In a debate summed up on six pages of Madison’s notes, including questions about when presidents were impeached, whether the Senate or not should never questioned this power. Legal scholars, especially originalists, would call this “the dog that didn’t bark”.
When the convention specifically debated the timing of impeachment, delegates William Davey, George Mason, Edmund Randolph, and Governor Morris (the last three considered the most influential delegates) implicitly rejected the Trump team’s arguments. On July 20, 1787, the convention turned to the proposed impeachment language and two delegates, Morris and Charles Pinckney, objected. Madison took up Pinckney’s objection: A president “should not be indictable in office”. Morris said that such impeachments of seated presidents would give Congress too much power over the president, who could be jeopardized by impeachment fears. This argument is akin to a concern about whether a seated president can be charged and prosecuted.
William Davie replied, “If [the president] If he is not indictable in office, he will spare no effort or means to get himself re-elected. [Davie] considered [impeachment of sitting presidents] as essential security for the good conduct of the executive. “
Morris saw the public as the final arbitrator – “If he were to be re-elected, that would be sufficient proof of his innocence,” he said – but neither Morris nor anyone else in the lengthy debate that followed suggested that a president should was not Re-election should be able to avoid impeachment for what he had done in office. Indeed, several delegates approached Morris, emphasizing their concern that presidents might abuse their power at a particularly dangerous time: when running for re-election.
On the same day, George Mason was particularly concerned with electoral fraud and the electoral college – presidents who corrupted voters in order to be elected and then tried to stay in power “by repeating his guilt”. It goes against logic to believe that a president who has tried such a system can only be charged if somehow he succeeds and remains in office – especially given the UK impeachment precedent that the founders drew on.
Randolph then emphasized the broad application, “Guilt wherever found should be punished” – reflecting the view that the purpose was not just to get out of office, but more generally punishment for abuse of power.
In the closing speech of the debate on July 20, Governor Morris, a proponent of a strong presidency, admitted that colleagues had persuaded him to drop his timing concerns and vote for the impeachment clause. After learning of the infamous “Secret Dover Treaty” in which the Englishman Charles II had signed a corrupt deal with French Louis XIV that led to war, Morris concluded that “treason” warranted impeachment . But then he added other reasons, including “constituent corruption and incompetence”.
He suggested that the inability, which did not imply a violation, only be punished with “humiliation of office.” However, the corruption during a re-election deserved full impeachment, removal and disqualification. The impeachment process for such abuses would, by definition, have to take place after the election. And, implicitly, Morris stressed the urgency of the electoral college disqualification for treason and corruption, regardless of the distance. With Morris reversing, the Convention voted and impeachment won 8-2.
In the six pages of Madison’s debates, the timing of impeachment was a key issue, and no one raised concerns about the conduct of the actual impeachment process after a president resigned. Again, it’s the dog that didn’t bark. It was the norm for English impeachments, it was recognized in state constitutions, but it was never questioned when the founders drafted the constitution.
Keep in mind that the founders were considering a scenario in which there was no 22nd amendment restricting presidents to two terms. Framers had to worry about a president who could abuse power to stay in office not just once but several times. With no term limits, it was even more important to prevent presidents from using their enormous powers to stay in office for long periods of time. This meant that electoral phenanigans had to be punished. Given the short time between elections and inauguration, especially in the 18th century, and even before the inauguration was postponed from March 4 to January 20, this suggests that the draftsmen have envisaged legal proceedings involving over could extend the term of office of the accused president. The impeachment of Hastings in England, for example, took seven years.
A fair reading of the Congressional debate shows that at the end of their term in office the authors advocated a full impeachment process for misconduct by the President, particularly with regard to re-election abuse, corruption, or confrontation with voters and insurrections. Coupled with their respect for the English tradition of impeaching officials who have left their posts, this suggests that Raskin was right to argue against the idea of a “January exception.”
This is a classic case where a careful reading of the Constitution is only the beginning of the interpretation, not the end. Given the ambiguity of the text itself, we look at the writers’ writings to clarify the purpose of the clause – which is common sense: the original meaning of impeachment clauses is that they also apply to former presidents as presidents.
Along with Trump, originalism was brought to justice in the Senate this week. The point of originalism – and I say this as an originalist jurist – is that our constitution should not be a verbose document that narrowly defines every point of law, but a framework that depends on the historical context to find meaning and purpose. As Senator Ben Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange During their confirmation hearings, there is insufficient text to understand what the Constitution requires. Because of this, Barrett explained, the Fourth Amendment Law applies to improper searches of cars, cell phones and heat detectors outside of homes.
The vast majority of Republican senators disagreed with the arguments they are expediently put forward in favor of appointing judicial officers and this week ignored the entire principle of originalism. The historical record before the Senate is clear: the founding generation understood that former officials can be indicted and brought to justice. If you look at this week’s Republican vote, it’s hard to say that Republicans didn’t just get their story wrong: they gave the Constitution its own privileged meaning, based on partisanship rather than historical evidence. They accepted the lawlessness that they want to reject. They used Trump’s four years to urgently fill the Bundesbank with alleged originalists. But with the rule of law at stake now, the Senate Republicans have effectively voted to disqualify “originalism” itself.