A Modest Proposal: Senate Democrats should file a lawsuit to determine jurisdiction over the impeachment trial, and they should do it now.

Photo by Joshua Sukoff on Unsplash

I am no constitutional scholar, but I do have a law degree and way back when I read through some pages of Chemirinsky’s constitutional guide book, or whatever it was called.

Recently, after a bunch of MAGAites stormed the Capitol on Trump’s urging, the House of Representatives impeached Trump after he left office. Thus, there remains an issue of whether a former president can still be impeached. Article II, Section 4 of the U.S. Constitution provides that, “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.” It doesn’t take a legal genius to see the inherent problem if one reads just the text of this section. It does not say “or former president” and the section clearly refers to the “removal” upon impeachment, something that is not possible if the impeached president is no longer in office.

The counter to this textualist argument is, as Chuck Schumer pointed out on the Senate Floor, that if a former president could not be impeached for acts done while president, then they could simply avoid impeachment, and therefore a bar on them running again (which the Senate has the power to do by a 50 member vote after conviction), by resigning before any such trial could take place. Therefore, presidents could simply resign and there would be no way for president to be held accountable.

Both arguments have merit to them. On the one hand, it is hard to envision that the founders intended to allow a president to skate free by resigning before he could be impeached and then avoid the punishment of being barred from running for office again. On the other hand, perhaps the founders realized that the threat of impeachment, removal, and barring of running for office again, would incentivize a sitting president to voluntarily resign.

Now, through a procedural motion by Republican senator Rand Paul, 45 Republican Senators have voted to declare the trial unconstitutional based on a lack of jurisdiction. Do all 45 of these Republican senators believe this? It is hard to say. I doubt much thought has been put into by most of them. But maintaining this position has an obvious political advantage in allowing these Senators to appease the Trumpian part of their base while simultaneously holding the position that what Trump did was really bad. In short, regardless of how the trial plays out, the majority of GOP senators will get to hide behind their “lack of jurisdiction” position; this position has all but ensured there will not be a vote to convict.

With most of the senate Republicans hiding behind jurisdiction, the Democrats should consider calling their bluff and filing a declaratory lawsuit on this very issue before moving forward with trial. Although it is not a guaranteed win, it would probably be worth the risk. Obviously, the downside would be that the Court would rule against the Democrats and there could potentially be no impeachment trial at all. But, if the Court did side with the Democrats, which I think is more likely, then the Republican senators could no longer hide behind their stance on jurisdiction. They would then be forced to take a real stance on whether Trump’s conduct constituted impeachable argument and whether he should be “removed”.

As any litigator will tell you, if there is an issue over whether a court has jurisdiction or not, you can expect that issue to be litigated well before trial, the reasons for which are obvious. So, perhaps it also makes sense in the context of impeachment to litigate this issue before trial as well.

Jack is a pen name for a fun loving attorney in the Pacific Northwest.