| | | wsj.com Opinion | No, You Can’t Try an Impeached Former President
Alan M. Dershowitz
President Donald Trump speaks from the White House, Jan. 19.
Now that Donald Trump is a private citizen, the Senate should dismiss the article of impeachment against him for lack of jurisdiction. The Constitution is clear: “The president . . . shall be removed from office on impeachment . . . and conviction”—not by the expiration of his term before the impeachment process is complete. It also mandates that “judgment in cases of impeachment shall not extend further than to removal and disqualification“—not or disqualification.
When the Constitution was written, several states allowed impeachment of former officials. The Framers could easily have included that provision, but they didn’t. They also explicitly chose to prohibit the British practice of trial by legislature—excepting only impeachment—and “bill of attainder,” any punitive legislative act against a specific person. The courts have held that the punishments prohibited by the Bill of Attainder Clause include disqualification from holding office. Moreover, the Constitution requires the chief justice to preside “when the president of the United States is tried.”
No former official has ever been convicted by the Senate, and only one has been impeached. Secretary of War William W. Belknap was indisputably guilty of numerous impeachable offences, to which he confessed as he resigned his office hours before the House unanimously impeached him in 1876. The Senate voted in favor of a procedural motion affirming its jurisdiction to try Belknap’s impeachment. But two dozen senators who believed he was guilty voted to acquit on jurisdictional grounds. A close vote nearly a century and a half ago doesn’t establish a binding precedent.
A more compelling precedent is the House’s decision not to impeach Richard Nixon. After he left office in 1974 to avoid certain impeachment and conviction, there was no movement to continue the process.
Beyond the constitution, there are strong policy and historical reasons an incoming administration shouldn’t seek recriminations against its predecessor. In some countries defeated former presidents and prime ministers are routinely prosecuted. America has lived more in accordance with President Lincoln’s message to the soon-to-be-defeated Confederacy: “With Malice toward none, with charity for all, with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds.”
For the victorious Democrats to seek revenge against Donald Trump would set a terrible precedent, distract from President Biden’s agenda, and make it hard to heal the country. Better to move on.
Mr. Dershowitz is a professor emeritus at Harvard Law School, author of “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo” and host of the “Dershow” podcast. He was part of the defense team in Mr. Trump’s 2020 impeachment trial.
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