Can the Senate Still Convict Trump? It’s Complicated

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Congress has impeached a former official before, though it's also dropped plenty of proceedings following a resignation. What now?

It wasn’t even close. After hearing the evidence, 94 senators determined he was such a disgrace that they voted to disqualify him from ever holding another federal office.

It was just over a decade ago that the Senate moved rather deliberately in the impeachment trial of Judge Thomas Porteous of the U.S. Eastern District of Louisiana. The proceedings began in September 2010 and ended in December.

As noted in my book Abuse of Power: Inside the Three-Year Campaign to Impeach Donald Trump, of the eight impeached federal officials to be removed by the Senate, all were impeached for actual crimes. And the Senate only disqualified three of those eight from holding future office.

This is where the Senate finds itself as it approaches the trial of former president Donald Trump, which begins next week. Removing him from an office he no longer holds is obviously not an option, but they can disqualify him from ever running again. They could also vote to revoke his pension if he’s convicted, though Trump will do just fine without it. Disqualification is what his foes are really after.

Porteous, impeached for accepting bribes and making false statements, was also removed from office by the Senate prior to the subsequent disqualification vote—or more to the point, an actual officeholder at the time of his trial. Not surprisingly, that was the case for the two other judges impeached, convicted, and disqualified from holding office again.

Before Porteous, you have to go back to 1913, when the Senate removed and disqualified Judge Robert W. Archbald of the U.S. Commerce Court after the House impeached him in 1912 on charges of improper business relationships with litigants.

In the only Civil War federal impeachment, Judge West H. Humphreys of the Western District of Tennessee was the first judge to be impeached, convicted, removed, and disqualified from holding future office. His offense was “waging war on the U.S. government,” putting his impeachment in a category all by itself. What’s entirely normal about Humphreys is that, like Porteous and Archbald, he stubbornly tried to cling to office despite the House impeachment.

Congress has impeached a former official only once before. In 1876, War Secretary William Belknap resigned from office amid a bribery scandal, but the House impeached him anyway. Just as has happened with the Trump impeachment, senators fiercely debated whether it was even constitutional to hold a trial for someone no longer in office. They voted in 1876 37-29 that they had jurisdiction to proceed with the Belknap matter, short of what would be needed to convict.

That didn’t stop the Senate from holding a trial that dragged from April to August. Belknap was ultimately acquitted, though a majority voted to convict. Of the 25 senators who voted to acquit Belknap, 22 said their votes were based primarily on the view the Senate had no jurisdiction—not that they thought he was innocent. Those 45 Republicans who voted against the constitutionality of the Trump trial will essentially have the same process argument baked in.

The Belknap trial is arguably not the greatest precedent for use of government time and resources, though proponents might well insist on the need for accountability of both Belknap and Trump. Whatever the case, the Senate never again followed its example until now.

In 2009, Judge Samuel Kent of the U.S. Southern District of Texas scribbled a resignation note from a prison medical facility after two Senate staffers came to summon him to testify in his trial. Upon his resignation, the Senate terminated the trial. The House impeached Kent over allegations of sexual assault and obstructing an investigation. Kent pleaded guilty in his criminal case to obstruction, but didn’t immediately resign from the bench in an attempt to continue collecting his salary.

In 1926, the House impeached Judge George English of the U.S. Eastern District of Illinois for abuse of power. English resigned and the Senate dismissed the case.

In what might have been an entertaining trial in 1873, the House impeached Judge Mark Delahay of the U.S. District of Kansas on charges of intoxication on the bench. But when Delahay resigned, the Senate nixed the trial.

The House’s first impeachment was of a senator, William Blount, in 1797, over charges of conspiring with Great Britain. The Senate, which already had expelled Blount, didn’t take kindly to the House meddling in their chamber. This was a special circumstance, but yet another example of the Senate opting not to try a former official when it was water under the bridge.

Then of course, there is the most famous resignation of all. The full House could have used the Belknap case as grounds to vote on articles of impeachment already approved by the House Judiciary Committee in 1974, and send those to the Senate. And perhaps in today’s political environment they would have. President Richard Nixon was only on the cusp of a House impeachment before he bailed. Countless other politicians and judges have also stepped down to dodge the indignity of a likely impeachment. Congress, seeing no utility, backed off.

Arguments over merits and practicality aside, the House was clearly within its rights to vote on a snap impeachment of Trump even if it was seven days before his term expired. Unlike with the first Trump impeachment, the second charge for incitement to riot at least alleges a crime.

The bigger question is whether the Senate has jurisdiction. Since it is a political matter, it’s not likely to be one a federal judge would ever consider ruling on. So we might expect more of these in the future.

Fred Lucas is the author of Abuse of Power: Inside the Three Year Campaign to Impeach Donald Trump (Bombardier Books, 2020) and is the chief national affairs correspondent for The Daily Signal and co-host of the “The Right Side of History” podcast.





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