As the Senate prepares to begin the second impeachment trial of former President Donald Trump tomorrow, it’s worth looking back to the last time the Senate tried a former government official. That was in 1876, when the Senate tried the impeachment of former Secretary of War William Belknap. Belknap was accused of participating in a kickback scheme, and he resigned a few hours before the House voted to impeach him. The Senate nonetheless went ahead with a trial, the first phase of which was devoted solely to a lengthy constitutional debate over whether a former official may be impeached, convicted, and disqualified from holding future office.
The debate between Belknap’s defense lawyers and the House impeachment managers on this question is fascinating, and the entire Congressional Record printing of their two‐week oral argument is available online. But that argument spans 45 dense pages and touches on many factual issues that are no longer relevant, which means reading it today takes significant effort. For the sake of rediscovering the many insights from that debate that are still relevant today, I’ve summarized these arguments in a four‐part series at the Yale Journal on Regulation’s Notice & Comment blog.
The constitutional arguments at the Belknap trial centered on four themes: the text of the Constitution, the prior practice of impeachment in England, the records from the Constitutional Convention, and the consequences of allowing “late” impeachments.
In debating the text, Belknap’s defense focused on the “removal clause” in Article II of the Constitution, which requires that 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.” U.S. Const. art. II, § 4. The defense argued that only persons named in this list could be impeached and convicted. They further argued that the list does not include “persons who have been President, Vice‐President, or civil officers, but only persons who can be at the time truly described as President, Vice‐President, or as civil officers[.]” Belknap Trial 29. The defense also insisted that the Senate could only convict current officers who could be removed, asking rhetorically “[h]ow can a man be removed from office who holds no office? How turn him out if he is not in?” Id. at 71.
The impeachment managers responded to these arguments by insisting that the removal clause meant only that “if at the time of conviction the party convicted is in office, all discretion is taken from the Senate” and that the Senate is “then bound to remove him.” Id. at 47. They focused on the Constitution’s additional optional punishment of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.]” U.S. Const. art. I, § 3, cl. 7. They maintained that “this punishment is applicable to persons who are not officers as well as to those who are[.]” Belknap Trial 65.
Turning to the second theme of the debate, the impeachment managers highlighted the clauses in Article I of the Constitution mandating that the House of Representatives “shall have the sole Power of Impeachment” and that the Senate “shall have the sole Power to try all Impeachments.” U.S. Const. art. I, § 2, cl. 5; § 3, cl. 6. They argued that these clauses adopted the common‐law English meaning of “impeachment” and that therefore “there is nothing to prevent the House of Representatives of the United States exercising the right to impeach the citizen as fully as can the House of Commons of Great Britain,” which had the power to impeach after an officer had left office. Belknap Trial 34. The defense responded that impeachment in America did not adopt these English practices because the “great purpose and object of our Constitution was to protect our people against the power that had been so much abused in England.” Id. at 70.
The third theme was the Constitutional Convention. Looking to the record of the Convention found in James Madison’s notes, the defense argued that “the principal debate in the convention” focused on removal and therefore “no member of the convention entertained the idea that impeachments should be employed against any but public officers.” Id. at 38. By contrast, the impeachment managers interpreted this fact as an argument in favor of jurisdiction over late impeachment, noting that the clause granting the Senate “the sole Power to try all Impeachments” was added “without an objection from any quarter[.]” Id. at 58.
The fourth and final theme of the Belknap trial’s constitutional debate focused on the consequences of allowing late impeachments. The defense argued that if former officers could be convicted and disqualified after their party had lost power, “it will not be long until impeachments, instead of being the nation’s great effort to punish enormous offenders in the interests of the people, will be degraded[.]” Id. at 45. By contrast, the impeachment managers argued that the power to disqualify a corrupt official should not be forfeited “upon the accidental circumstance that the evidence of the crime is not discovered until after the official term has expired or toward the close of that term[.]” Id. at 57.
Ultimately, the Senate voted by a 37–29 margin that it did retain jurisdiction to try Belknap notwithstanding his resignation, although Belknap was ultimately acquitted. Now that the Senate faces this difficult question once again, the arguments from the Belknap trial have suddenly become as relevant today as they were 145 years ago. You can read a fuller account of these arguments in my four‐part series here, here, here, and here.