Impeach an Ex-President? GOP Senators Reject Originalism 44 to 6

The Trump legal team is getting history wrong—and, oddly, the Senate GOP just voted against their own legal philosophy.

My piece in Politico:

The majority of Donald Trump’s defense against his second impeachment so far is that the trial being held in the Senate right now is unconstitutional. His lawyers devoted half their brief and half of their speaking time this week to arguing that the Senate cannot try former officers. Senate Republicans voted 44 to 6 in agreement.

But what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.

And if that’s the standard, those 44 Republicans might want to think again. The historical record reflects that the original public meaning of impeachment included trying and disqualifying former presidents. Those Senators simply ignored what the Founders said, and effectively voted against originalism 44 to 6…

Conclusion:

Along with Trump, originalism was on trial this week in the Senate. The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones, and heat detection outside houses.

Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican Senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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