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COMMENTARY: Senate cannot convict
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COMMENTARY: Senate cannot convict

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Pictures of the Week Photo Gallery-North America

Former President Donald Trump waves to supporters as his motorcade drives through West Palm Beach, Fla., on his way to his Mar-a-Lago club in Palm Beach after arriving from Washington aboard Air Force One on Wednesday.

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article II, Sec 4, US Constitution

After the violence at the U.S. Capitol on Jan. 6, various members of Congress immediately called for the impeachment of President Donald Trump for his alleged role of inciting the violence. In the emotion following the event, and the impending transition of power on Jan. 20, Democratic leaders of the House of Representatives quickly drafted articles of impeachment.

Unlike the three prior impeachments of an American president, which involved weeks of evaluating the evidence and examining/cross-examining witnesses, this impeachment involved solely votes of House members. The clear intent of the hasty impeachment was to beat the Jan. 20 transition. Despite foregoing any due process to beat the transition, this snap impeachment did not allow time for a Senate trial before Jan. 20. This leaves a critical constitutional question for the Senate: Whether or not senators have the constitutional prerogative to convict a former president following impeachment. The answer is clear that they do not have such power, and following through with a trial of a former president sets a dangerous precedent for all Americans and our system of checks and balances.

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First, the impeachment clause from Article II, Section 4 provides clear language that impeachment and conviction is for a current president to be removed from office: “shall be removed from Office on Impeachment for, and Conviction of…” Additionally, Article 1, Sec 3, clause 7, provides that the Senate’s power of judgment of impeachment “shall not extend further than removal from office and disqualification” from holding another office.

Attempting to convict a former president goes against the stated purpose of impeachment and conviction, and requires an extra-constitutional justification. As Justice Scalia put it about fidelity to the text of the Constitution: “You will sometimes hear [originalism] described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Those arguing for the power of the Senate to try a former president bring up an 1870s case of the impeachment of Secretary of War William Belknap. This impeachment came after his resignation, but set bad precedence in a unique case. The constitutionality of impeachment and trial was questioned at the time, and was never ruled constitutional by the Supreme Court. Importantly, Belknap resigned hours before he was going to be impeached and the resignation was solely to avoid impeachment. The evidence and witnesses against Belknap were beyond dispute. Belknap had even admitted to illegally taking substantial sums of government money from the profits of Ft Sill trading posts. Regardless of the evidence, a number of House members questioned the constitutionality of this impeachment. He was impeached.

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The Senate acquitted Belknap despite the overwhelming evidence and slam-dunk case. Importantly, senators never doubted Belknap’s guilt of this felonious corruption in office. The reason for his acquittal was that many senators held they didn't have the power to try the case. Before the trial started, almost half the senators voted against the trial on constitutional grounds. After Belknap, there was a 1913 case involving the impeachment of a former judge, but this was also bad precedence.

Beyond the text of the Constitution, the clear purpose of impeachment is removal from office. During the Constitutional Convention, George Mason initiated the subject of impeachment as “Some mode of displacing an unfit magistrate.” The discussions were solely about removal of unfit officers and the grounds of removal. Punitive actions against the individuals were reserved for the courts after impeachment. Art 1, Sec 5, Clause 7 ends with the officeholder facing potential criminal and civil penalties for crimes. After impeachment. As a practical matter, and showing the contradiction of the trial of a former president, the Senate must first vote for the president’s removal from office by a two-thirds vote. Only after that absurdity can a majority vote of the Senate prevent the president from holding further public office.

Critical for the protection of due process, allowing Congress and not the courts to try and convict a private citizen is a Bill of Attainder. This was used in Parliament as a way to convict individual citizens. Our founders found it absolutely contrary to due process and separation of powers. The Constitution specifically prohibits Bills of Attainder, and therefore limits impeachment to removal of officeholders. The stated motivation of punishing and humiliating Donald Trump after he has left office makes clear this trial would act as a de facto Bill of Attainder. Trump will be liable to the courts for any potential wrongdoing, and that’s what is intended.

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Senators should not put former President Trump on trial after this snap impeachment. Due process was nonexistent during the impeachment, and the Senate does not need to violate the Constitution. Let’s get back to what the wise founders intended.

Bill Connor, an Army Infantry colonel, author and Orangeburg attorney, has deployed multiple times to the Middle East. Connor was the senior U.S. military adviser to Afghan forces in Helmand Province, where he received the Bronze Star. A Citadel graduate with a JD from USC, he is also a Distinguished Graduate of the U.S. Army War College, earning his master of strategic studies. He is the author of the book "Articles from War.”

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