Scholars debate over content, Constitution regarding Trump impeachment
Christopher Parker | Friday, February 5, 2021
At an event marked by the semester’s firsts — first day of classes, first panel from Notre Dame’s department of Constitutional Studies — scholars joined to discuss the second impeachment of America’s 45th president, Donald J. Trump.
Benjamin A. Kleinerman, Jeffery Tulis and John Yoo each gave their opinions on the possible trial during the Wednesday discussion, entitled “The Second Trump Impeachment,” co-hosted by The Robert H. Smith Center for the Constitution at James Madison’s Montpelier.
Kleinerman, a professor of political science at Baylor University, and Tulis, a professor of government at the University of Texas at Austin, both advocated for a second impeachment trial, their arguments based both in the history of the process and in its implications for the future. Yoo, a professor of law at the University of California at Berkeley, argued that the case for impeaching a former president is not grounded in the Constitution.
Kleinerman drew extensively on the Federalist Papers as he outlined the dichotomy of the impeachment process, a legal trial carried out not by the Supreme Courts but by U.S. Senators acting as objective jurors rather than partisan politicians, he said. The implications, he argued, are that impeachments should ask whether a president broke his oaths rather than broke the law.
“At a fundamental constitutional level, we need to think of impeachment politically because the nature of presidential authority itself is outside the law,” he said. “Their oath demands that they ‘preserve, protect and defend the Constitution.’ To do this, they might sometimes have to take actions that if done by a private citizen, would be simply illegal.”
Because the impeachment centers around behavior more so than legality, Kleinerman said “the Trump impeachment must set a precedent to ensure such behavior is never permitted again.”
Tulis built on this, citing Trump’s very serious political crime that included lies about the outcome of the election and the mobilization of protest as grounds for impeachment, he said.
He also addressed the potential unconstitutionality of impeaching a former president by explaining the history of the process.
“The irony is most Americans think that the whole point is removal, and this addendum is disqualification, but in the actual historical construction of the Constitution, it was just the opposite,” Tulis said. “Many of the state constitutions didn’t even allow for removal … until after the person was no longer governor of that state. … A somber and well-handled trial can be a win in the long run by setting a powerful precedent.”
Yoo condemned Trump’s actions as unpresidential but still cautioned against an impeachment trial that he considered an overreach. He argued that the power of the vote could provide the exact same protection as an impeachment trial could.
“I think the only thing that impeachments are for is primarily to remove someone from office who is a threat to constitutional order, which was effectively done by the American people on the Nov. 4 election,” he said. “The American people are the ones who can really render a verdict on whether to disqualify President Trump.”
Like Tulis, Yoo also spoke about precedents that could alter relationships between the executive and judicial branches moving forward. He worries that if this trial goes ahead, later presidents could be tried by hostile Congresses long after they leave office. He pushed back on the House’s charge of incitement to riot, which has a high burden of proof after the 1969 Supreme Court case Brandenburg v. Ohio.
“You actually have to show the words, where the speaker actually calls for violence. The House, in its rush, actually did not conduct any kind of hearing or investigation to show whether that occurred,” he said.
Taken with other issues of wording that he pointed out, Yoo said the constitutionality of this trial is dubious and might backfire.
Questions from the 90-strong Zoom audience followed — asking the experts to elaborate on earlier points. They debated what might happen in different scenarios of the trial, including abstentions from Republican senators and the possibility of the Chief Justice of the Supreme Court presiding.
The next event from the Department of Constitutional Studies, a lecture on slavery and the Constitutional Convention by former professor Michael Zucker, will take place Feb. 25.