## An Imaginary Impeachment Trial

For most of my formal education, finding the square root of a negative number was deemed impossible and even prohibited. Then the math geniuses pulled a fast one.  You see, it was only prohibited in the real number system.  There is this infinite set of other numbers they ingeniously decided to call imaginary numbers.  Just like that we could find the square root of any negative number we wanted.  What fun.

Math geeks like me love to explore relationships between the world in which we live and the world of mathematics.  For example, removing a private citizen from the presidency after conviction of treason, bribery, or other high crimes and misdemeanors seems a little odd, unless we consider it an impeachment followed by an imaginary trial and conviction.  It’s just like finding the square root of negative one.  When the deed is done, we can imagine it.  Great idea!

There are exactly five references in the United States Constitution dealing with impeachments. Let us explore how they might apply to an imaginary impeachment trial.

Article I, Section 2, Clause 5 of the United States Constitution:

• The House of Representatives . . . shall have the sole power of impeachment.

Fair enough, and in this case the impeachment, which is analogous to an indictment in a court of law, pertains to a president who was still in office at the time.  Impeachment is like a charge or an accusation.  It is not a finding.  In the judicial system we believe the accused is innocent until proven guilty beyond a shadow of doubt.  Impeachment is not a legal accusation and the House of Representatives is not a grand jury.  Impeachment is a political process in which one body of the legislature decides by majority vote to accuse an office holder, in this case the President, of some impeachable offense.

Article I, Section 3, Clause 6 of the United States Constitution:

• The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside and no person shall be convicted without the concurrence of two-thirds of the members present.

The most interesting aspect of this clause relates to the Chief Justice of the Supreme Court who presides in a trial of the President.   The President’s term ended at noon on January 20.  Therefore, the Chief Justice is no longer involved.  Furthermore, nothing in the Constitution informs the Senate about who should preside in this case since the trial is now of a private citizen.  Since the Senate determines its own rules, it seems reasonable they could put it to a vote.  The Senate is split 50 Republicans, 48 Democrats, and 2 Independents.  Assuming the 2 Independent Senators continue to caucus with the Democrats, a 50 to 50 tie would be broken by the Vice President.

Once the presiding officer is selected, there is a question of that person’s participation in any vote during the trial.  If the presiding officer is the Vice President as chosen by a majority vote, could the Vice President continue to cast a deciding vote to break a tie on parliamentary or procedural votes, or to reach the required two-thirds vote for conviction.  A presiding Chief Justice would not vote in such circumstances.  Another complication occurs if the Senate chooses one of the members to preside and not have a vote.  At that point, the party of the presiding officer would no longer have 50 votes, thereby losing its tie vote potential.  The Vice President only votes to break a tie when a tie exists, and a 50-49 vote is not a tie.

Article I, Section 3, Clause 7 of the United States Constitution:

• Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.

This clause presents another complication with this imaginary impeachment trial.  It quite clearly limits judgment to removal from office and disqualification to hold any office in the future.  It does not say “or disqualification.”  It says “and disqualification,” and therefore, if the Senate cannot remove a private citizen from office it should not be able to disqualify that private citizen from holding any office in the future.

This is an important understanding because we would not want the legislative branch of our government to have the power to prevent private citizens from running for president or any other office.  That would transform our form of government from one with three coequal branches to a quasi-parliamentary form of government where the legislative body essentially has veto power over the selection of the President.  All it would take is a two-thirds vote of the senate agreeing that treason, bribery, or other high crimes and misdemeanors were committed by a private citizen.  How broadly could a partisan group of senators interpret what that means?  Of course, the Constitution never envisioned impeachment applying to private citizens, and it shouldn’t apply in this case or a dangerous precedent will be established.

Article II, Section 2 of the United States Constitution:

• [The President] . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

This explains why presidents cannot pardon themselves.

Article II, Section 4 of the United States Constitution:

• 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.

This presents the crux of the matter.  Former presidents are private citizens and are not among the persons subject to conviction after impeachment.  This article argues against holding a trial.  This issue must be resolved before a trial can proceed.  Is this an issue subject to determination by the Senate?  Is this matter subject to appeal to the Supreme Court?  Legal scholars differ on this issue.  The courts have not decided the matter.  If the Senate proceeds and convicts, can the former president ignore the conviction on the basis of it being unconstitutional?

It’s just an imaginary impeachment, like finding the square root of a negative number.