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Resolved: The Impeachment Trial of Donald John Trump in the United States Senate was Unconstitutional

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RESOLVED: The Impeachment Trial of Donald John Trump in the United States Senate was Unconstitutional

For this debate the Structure is as follows:

R1: Arguments Only
R2: Rebuttals to R1
R3: Rebuttals to R2
R4: Closing Statements (No New Arguments)

For the purpose of this debate:

Constitution - a document that embodies the fundamental laws and principles by which the United States is governed. It was drafted by the Constitutional Convention and later supplemented by the Bill of Rights and other amendments.

Unconstitutional - not constitutional; unauthorized by or inconsistent with the constitution, as of a country.

U.S. Senate - the upper chamber of the United States Congress, which, along with the United States House of Representatives—the lower chamber—constitutes the legislature of the United States.

Most definitions for the purpose of this debate will come in the debate itself from the U.S. Constitution; these are just some general definitions, which have been discussed with my opponent prior to start.

Round 1
ILikePie5 avatar
ILikePie5
Pro
Before I start, I’d like to thank Double_R for this debate and judges for reading it. For this debate I affirm the resolution.

Resolved: The Impeachment Trial of Donald John Trump in the United States Senate was Unconstitutional.


Contention I: Chief Justice

A.) Article 1 Section 3 states this: “When the President of the United States is tried, the Chief Justice shall preside…” [1]

In the Articles of Impeachment, the House clearly referenced Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors [2]. Per the Constitution, if the accused were the President of the United States, the Chief Justice must preside over the trial in the U.S. Senate. For this trial however, Chief Justice John Roberts did not preside; rather President Pro Tempore Patrick Leahy presided over the trial because Democrats believed that “former Presidents,” do not require the Chief Justice to preside [3]. Since President Donald Trump was referenced in the Articles of Impeachment, Chief Justice John Roberts had to preside. Since he did not, the trial was inherently unconstitutional.

B.) Let us entertain the Democrats’ theory for a minute though. If President Trump was indeed a “former President,” then the person mentioned in the Articles of Impeachment does not exist, since Trump is the “former President” not the “President.” The trial was for, per the Democrats, “former President Donald John Trump,” but this person is not the same as “President Donald John Trump,” and thus the trial would be unconstitutional because such a person does not even exist anymore!

Contention II: Trial of a Private Citizen in the Senate

A.) Article II Section 4 states this: 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. [4]

The Constitution clearly states the President, Vice President, and Civil Officers are the only people subject to conviction, not private citizens such as Mr. Trump. Democrats claimed that Trump was the “former President” to justify Patrick Leahy presiding over the trial; therefore, Trump is not the “President” and cannot be convicted by the Senate. It goes without saying that Trump never held the office of Vice President so he cannot be convicted by the Senate for that. The final mention is of civil officers.

Article II Section 2 says the following: and [The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. [5]

Trump is not an ambassador, public minister, consul, Supreme Court Justice, and neither is he an officer of an agency that has been approved by the Senate or an agency office where he has been nominated by the President Biden. As such the U.S. Senate does not have the right to hold the trial of Trump, and therefore the trial was unconstitutional.

If we interpret the meaning of President, Vice President, and civil Officers to mean former Presidents, former Vice Presidents, and former civil Officers, it brings an inherent ambiguity to the Constitution. For example, Article 1, Section 3 states: “The Vice President of the United States shall be President of the Senate” [6]. If we are to assume that Vice President in Article 2 Section 4 also means “former Vice President,” as is proposed then could not the former Vice President be the President of the Senate? To think this obviously should be frowned upon, bringing us to the logical conclusion that impeachment and conviction only apply to current officeholders, and therefore Trump cannot be convicted since he is the former President.

Contention III: Past Impeachments/Trials - Removal and Disqualification Conjunction

A.) Impeachment of Mark Delahay, Judge, U.S. District Court, Kansas

Delahay was impeached by the Uon February 28, 1873, on charges of intoxication on the bench; prior to his Senate trial however, he resigned his position [7]. The Senate trial never occurred even after the House formally declared to the Senate that they had impeached Delahay. Why did the trial not take place? Logically it is because the trial would be unconstitutional: disqualification must be preceded by removal, but since Delahay had already resigned and therefore was not a civil officer, a trial for just the purpose of disqualification would be unconstitutional since the process of removal cannot constitutionally be done.

B.) Impeachment Trial of former Secretary of War William Belknap

He was impeached March 2, 1876, on charges of criminal disregard for his office and accepting payments in exchange for making official appointments mere hours after he had submitted his resignation to President Grant, making him a private citizen [7]. In this trial Senators initially, by a simple majority agreed that the Senate has the right to try a former official; however, Belknap was acquitted because greater than one third of the senators believed that the trial was constitutional. On the fifth article voting 37-25 guilty “an analysis of the reasons given with the votes show[ed] that of those voting ‘‘guilty,’’ 2 believed that the Senate had no jurisdiction, but gave their verdict in good faith, since by vote jurisdiction had been assumed. Of those voting ‘‘not guilty,’’ 3 announced that they did so on the evidence, while 22 announced that they voted not guilty because they believed the Senate had no jurisdiction. One Senator stated that he declined to vote because he believed they did not have jurisdiction” [8, pg 45]

In this instance, since the beginning of the trial, a sufficient number of senators believed that the Senate lacked jurisdiction over the trial of Belknap because he was a private citizen who could not be removed from office. To be more frank, the acquittal was a direct result of the lack of jurisdiction and inherent unconstitutionality due to the possibility of only disqualification rather than removal and disqualification. This is the precedent set by this case since it directly impacted the outcome of the case.

C.) Impeachment of Samuel B. Kent, Southern District of Texas

Kent was impeached June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements, but resigned on June 30, 2009, six days after the start of his trial [7]. After his resignation, the House passed H Res.661 on a bipartisan basis that stated that “because Samuel B. Kent is no longer a civil officer of the United States, the House of Representatives does not desire further to urge the articles of impeachment hitherto filed in the Senate against Samuel B. Kent” [9]. In short, because Kent under Article 2 Section 4 was not the President, Vice President, or civil officer, the House decided that grounds for impeachment were not possible since Kent was a private citizen. The Senate Majority Leader, Harry Reid after the reading of the House Resolution, stated this: “with the resignation of Judge Kent, the purposes of the House’s prosecution of the Articles of Impeachment against Judge Kent have been achieved. Judge Kent is no longer serving on the Federal bench, and he has ceased drawing his judicial salary. It is agreed that no useful purpose would now be accomplished by proceeding further with the impeachment proceedings against Judge Kent” [10]. HReid did not even consider disqualification from future offices, why? Because removal and disqualification go hand in hand. Trying to do the second before the first simply does not fit the definition of “and” in the Impeachment Clause and is inherently unconstitutional.








Double_R avatar
Double_R
Con
Thanks ILikePie5

As per the rules of this debate, round one is for arguments only. I will respond to Pro’s arguments in the next round.

The question at hand in this debate is whether the constitution requires the defendant of a Senate impeachment trial to be in office at the time of the trial and subsequent vote. I will begin by providing some background and then move on to how it applies to the texts of the constitution.

Approach

Over the years there has been much debate over various passages of the constitution with regards to its meaning and application within our society. Opposing sides of this debate are normally categorized into one of two camps; originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted vs. non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.

When the constitutionality of any law or action is contentiously litigated, the ultimate ruling often comes down to which of these approaches is applied by the majority. Because the issue being debated has little to do with changes in society or culture, non-originalism has no real application here. Therefore, it seems clear that we are working within the “originalist” framework, meaning that we are looking at what the framers intended at the time the constitution was written.

Origins of Impeachment

To understand the framer’s viewpoint on impeachment it is important to begin by understanding that this concept did not originate with them. Rather, this was a concept barrowed from England where impeachment was not only regularly used against former officials, but there was even a closely followed impeachment trial in progress in England during the drafting of the constitution and cited at the Philadelphia debates. Impeachment proceedings against Warren Hastings began in 1785 upon his return to England after having resigned as an officer serving overseas [1].

This fact demonstrates that the understanding the framers had of the concept of impeachment prior to writing the constitution was in no way no way limited to serving officials. Thus, for any argument that the framer’s intended to limit impeachment to serving officers only to be considered logically valid, it must be supported with explicit examples of such intentions. It defies Occam’s razor to presume that they intended for impeachment to apply differently than what was universally understood at the time and yet never bothered to make such intentions clear.

Purpose of Impeachment

Few people will challenge the notion that the primary concern of the framers was to ensure a check on the power of the sitting president. But the fact that disqualification was also provided as an option for the Senate tells us that sitting presidents were not their only concern. The founders could have decided that they would designate elections be the sole process determining whether any individual should hold public office, but they granted the Senate the power to make this decision upon a guilty verdict. We don’t need a history lesson to understand what this tells us; the framers were very concerned about the prospect of a dangerous former official running for public office.

Impacts of the Resolution

The notion that an impeached President whose time in office runs out before his Senate trial can be completed contradicts everything we know about what the framers intended and frankly, defies common sense.

Impeachment is the political version of an indictment. That is, this is where charges are brought. Once an individual has been charged, the trial is where Congress makes its determination as to the defendant’s guilt. Pro’s position is that a charged individual escapes the consequences of conviction if his time in office runs out. If this is the case then the below necessarily follows;

1. Officials who abuse their office at the end of their term cannot be held politically liable
2. Any office holder can escape disqualification from holding future office if they resign prior to the Senate vote to convict

Both of these facts fly in the face of everything we know about the framers intent regarding impeachment and defending against the prospect of a dangerous candidate who threatens to destabilize our democracy.

Interpreting the Texts

Article I, Section 3, Clause 6:

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. [2]

Once the House has impeached the President the articles move to the Senate where the constitution gives the Senate “the sole Power to try all Impeachments”. This alone affirms the resolution. If the charges brought to the Senate are constitutional, and the Senate has the power to try “all” charges, then by extension the Senate has the power to try the charges brought. To argue otherwise is to argue that “all” in this passage actually means “all… except in a specific case which we never mentioned”. Such an argument would be a complete absurdity.

Article I, Section 3, Clause 7:

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. [3]

This passage makes very clear that an officer being tried and convicted in an impeachment trial is no substitute for being legally prosecuted, highlighting the fact that these are two entirely separate processes and thus one cannot be used as a means of dismissing the other.

Article II, Section 4:

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. [4]

There is much contained within this passage, as this is the only passage anywhere in the constitution that mentions government officials subject to impeachment, any requirements of conviction, and what constitutes an impeachable offense, all in 31 words.

The vagueness of this passage is particularly notable, as one of the most contested phrases in the constitution is with regards to what the framers meant by “high crimes and misdemeanors”. Gerald Ford famously defined this term as “whatever a majority of the House of Representatives considers them to be at a moment in history.”

Summary

The claim that this impeachment trial is unconstitutional goes against everything we know about what the framers intended and any logical inference from the passages themselves. Other than two passages I did not cite (one stating that the House has sole power of impeachment, the other stating that presidential pardons do not apply to impeachment) everything else the constitution says about impeachment was cited above.

Pro’s position in this debate amounts to the framers understanding that impeachment had historically been used against former officials and yet decided to change this while making no mention of it anywhere, that they expressly gave the Senate the power to try “all impeachments” while really meaning “only impeachments on officials actively serving at the time of trial”, and they intended to give the Senate the power to disqualify former officials from running again while providing those officials a clear loophole to evade any such disqualification.

Any attempt to argue that all of this is true is merely an exercise of ascribing meaning to the passages that are not there.





Round 2
ILikePie5 avatar
ILikePie5
Pro
I thank my opponent for his timely publishing of his arguments. In this round, I will refute my opponent’s arguments.

Approach
My opponent off the bat seeks to limit discussion of the powers of impeachment and conviction to the time of the Founding Fathers and the Constitutional Convention citing “originalism.” I argue that precedents created by Senate trials ought to have an equal footing. Inherently limiting the scope of the debate restricts the full analysis of the power of impeachment, conviction, and disqualification so much that actions on those matters create precedents, which Con would like to dispose of. For example, the Constitution does not mention how many votes are required for removal; however, the Senate itself has set the precedent that it only requires a simple majority vote after the 2/3 threshold of conviction to disqualify an individual from office [1 Sec 512]. My opponent would argue that this consequence is irrelevant on the question of constitutionality of the Senate trial because the Founding Fathers said nothing about it, but I argue that it forms credible evidence as to the matter of disqualification, which after all was per the Democrats, the reason for holding a trial. I don’t deny that evidence from the Founding Fathers should be used; as a result, I will be sure to defend my argument with text from the Founding Fathers as well.

Origins of Impeachment
In this argument, my opponent fails to mention one key fact: impeachment in Great Britain extended to private citizens as well considering Edward Fitzharris was impeached by the House of Commons [2]. The impeachment of Hastings was possible under British law and has nothing to do with the conviction of a private citizen. In fact, this entire argument is a red herring. George Mason in this part is referring to the crimes that constitute impeachment: 

“Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined” [3].

No where does Mason talk about the timeline of impeachment and the Senate trial. It does not in any way prescribe to Mason’s support of impeachment of a former, since that was not the context. 

Let’s however, for the sake of discussion assume that Occam’s Razor applies to something that wasn’t even related to the topic of debate at the Constitutional Convention. If I can prove that a Founding Father subscribed to the central notion that conviction can only result in only removal or removal and disqualification, then this entire argument should be vacated. 

Alexander Hamilton, one of three authors of the Federalist Papers in his plan for the Constitution communicated this as his opinion to Madison: “and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future Office or place of trust” [4 App F].

How does a former official like Trump get removed singly or removed and disqualified?

Purpose of Impeachment
My opponent in this argument primarily theorizes what the Founding Fathers must have been thinking rather than citing it, which is odd since their framework relies on the text of the Founding Fathers. The reason why disqualification was included was so removed individuals could not hold office again even via a Presidential appointment to an office that does not require Senate confirmation. An impeached, convicted, removed, and disqualified President while in office could no longer get appointed as the National Security Advisor by his VP, where he could do further harm. Con forgets in this argument that not all civil officers are elected; rather, a lot of them are appointed and confirmed or simply appointed.

Impacts of the Resolution:

1. Officials whose term expires cannot be held politically liable because they aren’t in politics anymore. Also, Constitution states removal must be a precursor to disqualification.

Let’s take a look at what Madison said on the question of temporarily removing an official while the trial is ongoing: “This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing Magistrate” [5].

In this, he relates to the belief that removal was the goal of impeachment, not conviction, and it wasn’t only him -- a majority of states agreed with this reasoning for voting no on the question.

2. For this argument I’d like the judges to consider this: if escape from disqualification is the official’s goal in resigning, why would he run for office or seek appointment to an office knowing full well that he would just be impeached again and face another trial? Furthermore, political expediency and electability must also be considered, especially if the person who has resigned faces civil or criminal charges, as a private citizen can. If we look at its history, Belknap never sought federal office again after resignation, Delahay never sought federal office after resignation, English did not either. 

Even Hamilton in “Federalist 65” says “The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves” [6].

Escaping official political penalty doesn’t result in the escape of unofficial political penalty.


Interpreting the Texts

  • Article I, Section 3, Clause 6:
My opponent seems to answer their own question. Article II Section 4 clearly says who can be impeached and convicted: President, Vice President, and Civil Officers. In fact, Article I Section 3 is a qualification to Article II Section 4. I have specifically mentioned in my case that a former official is not subject to a Senate trial because they cannot be convicted, since the punishment of removal is inapplicable. Con’s premise is that we can impeach former officials. If so then the  impeachment of George Washington would be constitutional, and as a result, the Senate can convict George Washington. I assume my opponent does not support this because Washington has been deceased for more than two centuries. Now I know the judges will be thinking that Washington clearly cannot hold office again, so disqualification does not matter, but that is not the point. Using my opponent’s logic, “all” implies dead officials as well since the Founding Fathers didn’t mention that dead people cannot be impeached or convicted. This is definitely a blasphemy since no dead person has been impeached or convicted. How about if after the official gets impeached, he suffers a heart attack, and passes away. Would the Senate trial of a dead official really be constitutional?

  • Article I, Section 3, Clause 7:
Private citizens cannot be impeached nor convicted.

  • Article II, Section 4:
This phrase was a source for debate, but it has nothing to do with the words prior to it. Trying to imply that this ambiguity in the sentence implies an ambiguity in the other parts of the sentence is absurd. For example: I have two bananas and many apples. The ambiguity in the number of apples does not change the fact that I have two bananas. President, Vice President, and Civil Officer was not up for debate in the context of current or former or current and former. This is simply grasping for straws at something that’s not there.


Summary:

My opponent talks about a framework that encompasses the views of the Fathers but does not cite much of what they had to say. Rather, they engage in a series of hypotheticals about possible scenarios, which themselves are infinite in number. Not only this, they try to make all of Article II Section 4 ambiguous when only a part of it is in reality using “vagueness” that clearly is limited to a part of the sentence.

Back to you Con!
Double_R avatar
Double_R
Con
Response to Pro’s round 1 argument

Contention I

(A) Pro argues that because Chief Justice John Roberts did not preside, the Senate impeachment trial was inherently unconstitutional. To support this contention he references the following passage:

“When the President of the United States is tried, the Chief Justice shall preside…”

Pro is misconstruing what this establishes. The fact alone that this passage begins with the word “When” refutes this argument in that it already assumes at the outset that the trial is occurring. If as Pro claims, this was meant as a condition of the trial it would have so stated.

Moreover the second half “the Chief Justice shall preside” is clearly not a directive towards the Senate but rather a directive towards the Chief Justice. If John Roberts does not preside as Pro claims the constitution mandates then it would be Roberts, not the Senate, who is in violation of the constitution.

Roberts was correct however in that he was not required to preside over this trial. We know this because the framers were clear as to why the Chief Justice was required to preside over a trial of a sitting president; they were careful to avoid a scenario where the Vice President could end up presiding over a trial that resulted in his/her elevation to the presidency.[1] This situation could only occur when a sitting president is on trial, so the passage doesn’t apply in any other circumstance.

Furthermore, Pro’s interpretation of this passage effectively grants John Roberts as the Chief justice the sole power to determine if the Senate can hold a trial of the president. Not only does this completely contradict article1 which grants that power to the Senate, but this also contradicts the very reason the Senate was granted this power in the first place. In federalist 65 Alexander Hamilton explains:

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude… The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. [2]

Among many reasons for choosing the Senate, Hamilton makes clear that the Supreme Court was not “numerous” enough to meet the level of confidence that would be needed for this responsibility. This directly opposes the idea that they would then grant one single individual the power to decide whether a trial should proceed.

(B) I find Pro’s argument that President Trump as stated in the impeachment articles “no longer exists” bizarre. Imagine charges being brought against a police officer for an unjust shooting. The charges list “Officer John Doe”, who shortly afterward resigns from the police department. Can he no longer be tried because “Officer” no longer applies? No serious attorney would even attempt to argue such a case.

Contention II

In making his case as to why former officials cannot be tried Pro points to the following passage:

“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.”

Pro claims that this states “only” serving officials can be impeached and tried, however the word “only” does not appear anywhere in this text and nothing in this passage implies conditions of exclusion for these officers. Pro’s assertion is purely imaginary, this passage merely conveys the minimum requirement for what shall happen to the impeached officers upon conviction.

Pro also implies the idea of convicting private citizens as the only alternative for convicting serving officers, making it sound as if declaring the trial of a former president to be constitutional amounts to Congress being able to impeach your next door neighbor. Nothing about my case would lead down such a path. The former grants Congress with a means of holding someone elected to the office of the president accountable for his actions as president, the very thing that the framers set out to accomplish by including impeachment powers in the constitution. The latter is categorically different and has no application within the federal government.

Pro then concludes his argument on this by pointing to “ambiguity”, suggesting that if we take “The President” in article 2 section 4 as anything but exclusive to the former president being tried, that this would lead to “The President” anywhere in the constitution to include former presidents. In round one I spoke about originalist vs. non-originalist views on interpreting the constitution. Pro seems to have settled for neither, and gone with “semantic” as a third category. This is not the way laws in this this nation are interpreted because such an approach would be dangerous. Understanding what passages say takes thought, Pro's position is essentially to abandon any thought.

Contention III

Pro cites three examples to establish past precedent regarding impeachment trials. This is not a strong bases for this debate because aside from passing a constitutional amendment, previous senate’s do not determine the constitutionality of future senate’s actions. But more puzzling to me is the fact that none of Pro’s examples establish what he claims.

A)    Mark Delahay, Judge, U.S. District Court, Kansas

Delahey resigned before his trial which subsequently never occurred. Pro claim’s that this logically implies the Senate found this trial unconstitutional when no such conclusion is justified. There is no indication that Congress saw a removed Delahay as a threat, so it was perfectly reasonable for them to not continue. It is also a curious example because in this case the articles of impeachment were never even drafted let alone sent to the Senate [3], so it has no relevance to this debate.

B)    Secretary of War William Belknap

Belknap was impeached after having resigned, and the Senate trial began with a vote on whether they had jurisdiction to try the case. The vote passed and the trial proceeded. 40 of the 62 senators later voted to convict or acquitted based on the merits. Pro here is citing the opinion of the 35% minority to strengthen his case. It does not.

C)    Samuel B. Kent, Southern District of Texas

In this example Congress by their own account stopped all impeachment proceedings because they found no purpose would be served. Congress is free to decide their own priorities, that has nothing to do with constitutionality.

However, after laying out the facts Pro then concludes by asserting without any evidence that Harry Reid’s rationale for not proceeding was “because removal and disqualification go hand in hand”. There is no reason to believe this was Reid’s thinking nor would it be relevant. Pro goes on; “Trying to do the second before the first simply does not fit the definition of “and” in the Impeachment Clause and is inherently unconstitutional”.

I don’t understand the argument here. The first part (removal) had already been accomplished through Kent’s resignation, so Congress would not have been doing the second before the first.

Regarding “and” as Pro mentions, he is apparently referring to article 1 section 3 which reads:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification”

As indicted by “shall not extend further” this passage is merely communicating limitations on Congress. The “and” in this sentence does nothing more than communicate that both punishments are options for the Senate, which does not further the case that it would have been unconstitutional.

None of these arguments stand.
Round 3
ILikePie5 avatar
ILikePie5
Pro
Contention I

A.) Con doesn’t realize that the Chief Justice presiding is a condition to the trial in the first place when the “President is tried.” A trial cannot occur until the Presiding Officer is sworn in. “When” inherently implies a conditional phrase, and those conditions have to be satisfied for the trial, otherwise, it is unconstitutional. Con in their rebuttal clearly states that the ex-President can be substituted for “President” in Article II Section 4, so I ask the judges, why can we not substitute ex-President for President in Article I Section 3, so that the Chief Justice is required to preside? 

It seems that my opponent concedes the point that if Roberts doesn’t preside then the trial itself is unconstitutional. The question isn’t whether Roberts is acting unconstitutionally, the question is whether that makes the Senate trial unconstitutional and my opponent seems to concede it does.

Con says that because Trump is an ex-President for the trial, Roberts doesn’t have to preside, but this ignores a fundamental point: the Articles of Impeachment name President Trump. Charges have been brought for the President, not ex-President. With Con’s logic former VP Biden can be impeached rather than President Biden, in which case current VP Harris could preside.

When Donald Trump was impeached the first time, Roberts presided. What if he decided that he did not want to preside? In this scenario, Roberts could single handedly make the trial unconstitutional, but this is clearly protected against in the Constitution: checks and balances. Article III Section 1 states this “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour” [1]. 

Roberts is subject to impeachment and conviction because he is a civil Officer, and refusing to honor his constitutional obligation clearly is not “good behavior.” The solution to my opponents dilemma is simple: impeach and remove the Chief Justice. A trial cannot constitutionally begin until the PO is administered the oath and then they administer the oath to the Senators. 


B.) Con’s argument has a fatal flaw: criminal/civil charges are completely different than the process of impeachment because the jurisdiction is different. Officer John Doe can be charged at any time because he is still a private citizen both while he is serving in the police department and after he resigns. The jurisdiction of Congress is clearly different since it explicitly lays out President, Vice President, and civil Officers of the United States. Congress does not have the power to impeach or convict my opponent nor me because their jurisdiction is restricted to sitting officials. Con asks you to expand the power of Congress to private citizens.


Contention II

My assertion is simply common sense. Article II Section 4 states: “shall be removed from office.” It clearly delineates how the President, Vice President, and civil Officers are removed upon impeachment and conviction, but that simply is not possible with an ex-official who cannot be removed in the first place. Obviously this means that removal must come before disqualification described in Article I.

My opponent finally talks about the ambiguity. Rather than arguing the merits of this argument, my opponent switches to his framework to dodge the allegation. Even then he assumes that I subscribe to a “semantic” framework, when that is literally the purpose of the debate. In fact, Con says interpreting the President anywhere else in the Constitution to mean ex-President would be dangerous. I agree, but that’s what Con’s argument entails. They argue that if my position were true, then the Founding Father would have included “only current” to Article II Section 4, but I can argue the same to everywhere else in the Constitution. Why wasn’t it only the current Vice President will be the President of the Senate. Judges, you have to ask yourselves, which is an easier interpretation keeping the entire Constitution in mind: President meaning current President everywhere or according to Con’s logic ex-President inclusive everywhere? 


Contention III

Con seems to believe that precedents by a body don’t matter much, but clearly that is not the case throughout history. Many judicial precedents carry weight even today. Past Senate trials carry these precedents, which Con would argue don’t even matter

A) Mark Delahay, Judge, U.S. District Court, Kansas
Con says that because Articles of Impeachment weren’t drafted or sent to the Senate, this case is irrelevant. However we must understand why the House did not pass Articles of Impeachment -- because there was no point in removing someone who wasn’t in office. Nobody even considered late impeachment/disqualification. Only if the remedy to impeachment is first and foremost removal can this decision hold and that had to be the case.

B) Secretary of War William Belknap
The problem with my opponent’s argument here is that they infer the Senate can make something that’s unconstitutional constitutional just by a simple majority vote. For example, assume the House impeaches George Washington, a dead president, which is obviously unconstitutional. The Senate by a majority vote could declare that the trial is constitutional. All this does is demonstrate the tyranny of Congress. Thankfully, the Founders restricted conviction to ⅔ of the Senate and 35% minority stood in the way of convicting a private citizen. The fact that the defendant was acquitted not on evidentiary grounds but on jurisdictional grounds establishes this precedent just like the precedent of Salmon Chase’s trial. In this trial, “the Senate effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions” after acquittal on the matter” [2]. Oddly enough it was in this trial that a delegate to the Convention aka a Founding Father, Luther Martin stated this: This clearly evinces, that no persons but those who hold offices are liable to impeachment. They are to lose their offices; and, having misbehaved themselves in such manner as to lose their offices, are, with propriety, to be rendered ineligible thereafter” [3].

C) Samuel B. Kent, Southern District of Texas
Con somehow refuses to acknowledge that if the Senate wanted to, they could disqualify a convicted sexual offender from federal office even after he resigned his office. This logic is my opponent’s entire case, but he just simply concedes not only the Senate, but the House thought that there was no purpose in going forward with the trial. The only logical reason for this action was that Kent was no longer a federal official and could not be removed. Con would like you to believe that not only Reid, but the entire Senate and House would have been fine with letting a sexual offender hold office again because that is the assumption my opponent would have you believe rather than mine. The purpose for the trial is removal as my opponent concedes, but since Kent resigned, he could not be removed, and because of that could not be disqualified.

Con assumes that resignation is the same thing as removal according to the Constitution, which is blasphemous. The Senate did not remove Kent, he resigned, and because he resigned, the Senate couldn’t remove him. If you could disqualify an official after his resignation or expiration of term in office, why wouldn’t 1/535 members of Congress even bring it up, especially considering this was a sexual offender we were talking about.

If the Founders wanted to frame options they would have put an “or” instead of and. The official could be removed or disqualified, the latter which inherently implies removal in the first place. “Shall not extend further” only seeks to limit the fact that Congress can’t order the execution of the official as was the case in England when Charles I was executed upon conviction in the House of Lords [4]. Either way, Hamilton clearly said in his plan that removal had to come before disqualification.


Double_R avatar
Double_R
Con
Approach

Pro argues that in addition to originalism as a means of interpreting the constitution, we should also give equal weight to past precedents. I have already responded to the examples my opponent provided in the previous round, none of them establish precedents to further his case so I will respond to any critiques next round.

Regarding Pro’s simple majority example, the fact that disqualification currently requires 51 votes is not due to past impeachment precedent. All votes in Congress default to a simple majority unless stated otherwise.

Origins of Impeachment

Pro misses the point on why the historical use of impeachments including the Hastings trial are relevant here. I was simply pointing to the fact that the framers understood its use against former officials to be well within its lines. This alone does not establish that impeaching a former official is constitutional, but that does raise the standard of evidence for my opponent because it is he who is arguing that the framers changed historical precedent without any acknowledgement of doing so, a point he has yet to address.

The argument continues with a quote from Alexander Hamilton; “and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future Office or place of trust”

Hamilton is making a point here that the Senate cannot impose disqualification without removal. In other words, the Senate cannot disqualify a president from holding future office while he remains in office.

Pro however is taking something entirely different out of this; the idea that because the Senate cannot themselves remove Trump from office, they cannot convict him in trial. He makes this argument with no reason why the framers would have concerned themselves with this but in so doing, he is conflating the concept of punishment with jurisdiction, simply put, he claims that if a body cannot impose a required penalty then they no longer have jurisdiction to try the case.

In addition, he engages in another conflation; that of a right to hold the trial vs. a reason to hold the trial. If a defendant has already been served the punishment then the body trying the case is likely to see no reason to continue, but there is nothing in the constitution or in law that suggests the right to try a defendant is forfeited once that body can no longer impose the penalty.

I’m sure my opponent will respond to this by again pointing to the fact that the constitution mandates removal upon conviction, but that mandate is a minimum sentence, not a condition of the trial itself. If under some odd circumstances the mandatory punishment were not carried out it would be at that point, not the trial, where the constitution would be in violation. Yet I somehow doubt any serious legal scholar would claim the Senate to be in violation for not removing a president that has already been removed.

Furthermore, if the framers intended to conflate conviction and removal, then the trial would not adjudicate the question of guilt because there would be no reason to ask the Senate whether they believe the defendant was guilty of the charges. Under Pro’s framework the trial would merely ask “should removal be imposed”. By asking the Senate whether they find the defendant guilty of the charges the framers separated the question of guilt from the punishment making it a two-step process, so there is no reason for us to accept Pro’s interpretation that the question of guilt cannot be answered merely because punishment is already in effect.

To put further emphasis on this point let’s compare to Congress’s expulsion power granted in Article 1, Section 5, Clause 2:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member” [1]

Take note of the fact that in granting this power to Congress there is no preceding question of guilt that must be addressed. This makes the act of holding a vote to expel a former member unconstitutional because the very thing they would be voting on cannot apply to someone who isn’t there. If removal from office were thought of in the same way the framers would not have structured the impeachment proceedings as they did.

But of course, all of this misses the fact that in this trial there was an unresolved question of punishment; that of disqualification. Thus, Pro’s interpretation not only confuses the Senate’s right with the Senate’s reason for holding the trial, but in doing so it comes at the cost of the actual reason to hold the trial. Nothing within the constitution nor the framers known concerns supports his interpretation, yet he wants us to accept the forfeiture of the Senate’s right to disqualification resulting in the political safe harbor of an accused official because of it. That runs contrary to everything we know the framers were setting out to accomplish.

Purpose of Impeachment

My opponent asserts that the reason why disqualification was included was “so removed individuals could not hold office again even via a Presidential appointment…”. This is not a reason for inclusion, this is what disqualification means.

Impacts of the Resolution

1. Pro asserts that someone cannot be held politically liable if they aren’t in politics anymore. This is objectively false since disqualification is by definition a political consequence. On the other hand, if he is claiming that this cannot happen because it is a constitutional violation then this is nothing more than begging the question of this debate.

Regarding Madison, the quote cited was his answer to the question of whether a president should be put on intermediate suspension during an impeachment trial. It was soundly rejected for the reasons Madison cites. That has no relevance to this debate.

2. The fact that an official resigning in the face of conviction may result in an “unofficial” political penalty is irrelevant. The prospect of an unofficial penalty does not negate one’s right to impose an official penalty.

Interpreting the Texts

Article I, Section 3, Clause 6:

My opponent absurdly argues that my case amounts to George Washington being eligible for impeachment. He of course forgets the fact that this debate is specifically about Donald Trump’s Senate trial which proceeded his impeachment as a sitting president. The “all” I referenced earlier establishes the Senate’s power to try all articles executed by the House. The question of whether the House can impeach a former (or dead) president is not relevant here since that is not what happened.

Pro’s argument does however touch upon a key point; when drafting an instructional document such as the constitution, not every question needs to be answered. Some prospective scenarios are just so preposterous that it would not have been worth the framers time and effort to address. If Congress needed a provision in the constitution excluding the trial of 200 year old dead presidents to stop them from being held, then constitutional ambiguity would be the last of our problems.

Article II, Section 4:

The purpose of pointing out the ambiguity within this passage is to demonstrate the fact that it was simply not the approach of the framers to provide instructions for every imaginable circumstance. Pro would have you believe that every word used in the constitution was chosen for its specific and exclusive definition, rendering any attempt to understand context and meaning to be illegitimate. Law in this country does not and has never worked in this way.

Round 4
ILikePie5 avatar
ILikePie5
Pro
For this round, I’ll summarize the critical arguments of my case and gaping holes in Con’s case and rebuttals. Rebuttals against the Round 3 rebuttals are not permitted in any way, shape, or form; essentially, only already mentioned items can be reiterated.


Critical Point #1: Founding Fathers

Con’s Framework restricts them to an originalist interpretation of the Constitution; I on the other hand, argue that originalist interpretation and Senate precedent ought to be considered. 

I have cited two Founding Fathers and their thoughts on impeachment and conviction within the Constitution. Alexander Hamilton’s plan at the Constitutional Convention read this: 

“and judgment on conviction upon the trial thereof shall be either removal from office singly, or removal from office and disqualification for holding any future Office or place of trust” [1 App F]. 

As one of the main authors of the Federalist Papers and supporters of the Constitution, his opinion is invaluable to the interpretation of the Constitution. Removal must be the first action the Senate takes. Only after that can they decide on disqualification. Trump cannot be removed because he’s not in office, thus the Senate cannot constitutionally try him, because the punishment is impossible.

The second Founding Father I cited was Luther Martin. At the Senate trial of Justice Chase he stated this: 

“This clearly evinces, that no persons but those who hold offices are liable to impeachment. They are to lose their offices; and, having misbehaved themselves in such manner as to lose their offices, are, with propriety, to be rendered ineligible thereafter” [2].

Once again another Father comes out to say that the losing office has to be the first punishment before ineligibility can be concerned. The Senate cannot remove someone who does not have an office, and therefore, they lack jurisdiction to impose the punishment, making the trial unconstitutional.

Con, in regards to impeachment and conviction, has only miscited George Mason to support his claim that Mason supported conviction of a person not in office. This was not even close to the context of that discussion, which was about whether only treason and bribery should be impeachable [3]. Saying that because the Founding Fathers didn’t say anything about it, means they supported it is a clear example of the ignorance fallacy.


Critical Point #2: Article II Section 4

Article II Section 4 clearly states “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” [4].

The Constitution clearly states that the President, Vice President, and Civil Officers shall be removed from office upon impeachment and conviction. Judges, how does an ex-President get removed from office? Con has said that President, only in this part of the Constitution, means ex-Presidents as well as current President, but the punishment is clearly impossible.


Critical Point #3: Article I Section 3
Article I Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification” [5].

Let’s be clear about this phrase. With Hamilton and Martin’s opinions in mind, “and” can only mean removal alone or removal and then disqualification. If Con’s position were true the Founders would include an “or” clearly implying that a person can be removed or disqualified, the latter which is applicable to former Presidents and current Presidents because disqualification inherently implies removal.


Critical Point #4: Chief Justice

Con’s argument is that ex-Presidents are included in “President” because the Founders didn’t put “only current” as a qualifier. Well if that were the case then I could make the same claim as to why the Founders didn’t put “only current” as a qualifier to the President in this clause: “When the President of the United States is tried, the Chief Justice shall preside.”

Keeping Con’s position consistent, if former President Obama were impeached, the 
Chief Justice would have to preside but he clearly denounces that. Hypocrisy at its finest.

Let’s look at my position though: The Articles name President Donald John Trump, not former President Donald John Trump, meaning the trial requires the Chief Justice to preside. The jurisdiction of Congress is different because the Founders sought to limit the power of the government. Criminal allegations aren’t limited but Congressional allegations are limited to Civil Officers. Convicting a private citizen, like Trump, expands the power of the very Congress the Founders sought to curb. 


Critical Point #5: Senate Precedent

Con refuses to even talk about Senate Precedents. He provides zero Senate precedents to support his case. He simply dismisses my precedents as irrelevant without even refuting them for some odd reason; furthermore, he insinuates that every Senate action during a trial is constitutional even if it violates the Constitution. That’s not all though, he’s under the impression that resignation or the end of a term is just like removal, which is absurd. Removal is a process enshrined in the Constitution, which can only be conducted by the Senate. The Senate has no jurisdiction for resignations and end of terms. The biggest takeaway is however, that Con believes Congress chose not to disqualify a sexual offender in the form of Judge Kent for absolutely no reason. Judges, why would literally all of Congress choose willingly to not  disqualify a convicted sex offender after his resignation. If Con’s argument was correct and officials that no longer hold offices could be disqualified, why did Congress not even consider this man’s disqualification. The answer is pretty simple: Congress did not believe they can remove and disqualify a person not in office anymore.


Critical Points #6: Flaws in Con’s Arguments

The first major flaw is that they believe every former official is subject to impeachment and conviction. Believing that former Presidents are convictable means that they have to be impeachable after leaving office. A half and half cannot be possible. With this, Con has to believe that George Washington could be liable for impeachments even though he passed away decades ago. They would have to believe that a President impeached in the House but who died before the Senate trial would merit a Senate trial, which is obviously illogical.

The second major flaw is that they have no sources from the Founding Fathers that supports their contentions. Their entire framework lies upon the originalist interpretation of the Constitution, a burden that I filled with my numerous quotes from the Federalist Papers, Constitutional Convention, and other contemporary material. Con only miscites Mason and uses a Federalist Paper to support a claim as to why the Founding Fathers did not name the Supreme Court the court of impeachment, which is irrelevant to their contentions. Not to mention that their stance in this debate expands the power of Congress to private citizens after leaving office.

The third major flaw is their selective interpretation. Con only wants to place ex-President in Article I Section 4, but nowhere else in the Constitution. They only want to consider originalist interpretations but not historical Senate trials and outright refuses to even consider them. Con wants you to believe that Joe Biden can be impeached for his term as Vice President and have Kamala Harris preside over it. Con wants you to believe that John Quincy Adams could be impeached as a sitting Senator after his term as President expired. The allegations are so absurd that they have no place in the Constitution.


Summary:

Con clearly has lost the argument points based on the aforementioned critical points and flaws in their argument. Furthermore, I have better sources and better application of sources meaning that I should get source points. Thank you for reading!


Double_R avatar
Double_R
Con
The question at hand in this debate is whether a Senate trial of an impeached president can be held if that president leaves office before the trial begins. Pro has spent much of this debate misrepresenting my position and engaging in reductio ad absurdum’s. I will address the main two first so that we can move on to the real contentions here.

Pro repeats the term “private citizen” frequently throughout this debate. This is just a loaded term being used as an attempt to smuggle a caricature of my argument into the debate. Everyone knows private citizens cannot be impeached by Congress, Trump was impeached as a sitting President for his actions as president so this is irrelevant.

Worse however is the insinuation that my arguments will somehow lead to George Washington’s inevitable impeachment trial. This is just a terrible appeal to extremes fallacy. In making this argument Pro again ignores the obvious difference I already pointed out – the impeachment itself was unquestionably constitutional, and the Senate has the right to try all impeachments. If Congress began the impeachment process after he was out of office then it would be worth discussing where to draw the line, but that line has already been drawn so this argument is just a distraction.

Moving on...

“Shall be Removed”

The main point of disagreement in this debate is the question of what is entailed when the constitution cites removal as a necessary consequence for conviction in a Senate trial. In the last round I made clear that removal is a minimum sentence upon conviction as opposed to a condition of the trial itself. Pro never responded to this. Rather, he just reasserts that because Trump had already been removed, the Senate did not have jurisdiction to try the impeachment articles delivered to them.

Pro never even attempted to offer a reason why we should interpret the passages this way. He gives us no logical connection between the idea that the Senate verdict must be the source of removal, and how his interpretation fits with the intentions of the framers as they wrote the very passage Pro cites to argue his point.

Later in the debate he would strawman my position claiming I presented an ignorance fallacy by arguing that the framers must have been for impeaching former officials because they never stated otherwise. The fact that they understood impeachment as a tool against former officials gives us yet another reason to reject Pro’s assertion that “removal” as cited could only be taken to mean “removal from a Senate conviction”. That coupled with his lack of reason or evidence for his position allows us to easily conclude his interpretation is wrong.

I have spoken at length about why my position makes sense when considering what the purpose of impeachment was, what the framers were concerned with, and how interpreting the law works in this country. Pro never challenged any of those premises, so in the end it just comes down to a question of whether context matters. I don’t see how anyone can claim to know what a document is saying without it.

Founding Fathers

Absent a reason for accepting Pro’s interpretations based on the passages themselves, he then supports his interpretation by citing two of the founding fathers, but he makes the same mistake in both examples that he does with the constitution; he does not consider their quotes in context.

Hamilton cited the two distinct impeachment outcomes as “removal singly” or “removal and disqualification”. As I argued last round, he was explaining that one cannot be disqualified while remaining in office. Pro is just hearing what he wants to hear.

Pro cites Luther Martin’s statement to show that losing office must be the first punishment resulting from impeachment. This had nothing to do with Martin’s point. At all. Martin was arguing that impeachment is limited to political consequences only, directly refuting the “suggestion” he claimed some had made that Congress can use it to act as a jury for criminal trials. Here’s Pro’s source again. See the full quote and note the highlighted portion [1].

Side note: I never cited George Mason. Pro did, in round 2 under “origins of impeachment”. His whole charge that I miscited him is made up.

The Chief Justice

In round two I argued that the Chief Justice is only required to preside over a trial of the sitting president. I went on to explain why the framers wrote the passage to ensure this; because they were very concerned about a Vice President presiding over a trial resulting in his/her own elevation to the presidency. Pro never responded to this. His characterization of my position that (paraphrasing) “the president’s trial is constitutional because the founders didn’t put only current as a disqualifier” is purely a strawman.

Pro also claims that the Chief Justice must preside because the impeachment articles cite “President Donald Trump”. It is obvious why Roberts disagreed; article 1 section 3 refers to the holder of the office, not the title on the paperwork delivered to the Senate.

In the interest of space, I will have to move on. The remainder of our disagreements here are simply not relevant. Pro argues that the trial was unconstitutional because the Chief Justice did not preside, but he dropped my argument that he was not constitutionally required to.

Senate Precedent

Pro’s examples showing why past precedent supports his case do the exact opposite.

His first and third examples only show that Congress decided not to proceed. This tells us nothing about whether proceeding would have been a constitutional violation. Asking the readers to come up with their own answers on why Congress did not bother doesn’t change that.

More remarkably however is the Belknap example where the Senate voted that the trial was constitutional before proceeding. How is Pro citing an example where they held the trial… as a precedent to show they cannot hold the trial? Pro cites the 35% minority acquittal as his answer which does not help. He cannot use the intentionally high standards of conviction as the standards to establishing the constitutionality of the trial itself.

But even worse, Pro claims a conviction here wouldn’t have mattered anyway saying it would have just demonstrated the “tyranny of Congress”. So to be clear, when the Senate agrees with him it sets a valid precedent, but when the Senate disagrees with him it’s an illegitimate precedent. This confirmation bias defined.

The question of whether Senate precedent can make a strong case on this topic has no relevance since Pro could not provide any legitimate examples.

Summary

The essence of my case boiled down to two basic points; that everything we know about the framers intent is consistent with this trial being held, and that deeming the trial unconstitutional leaves an obvious loophole in place contradicting the very intent of those passages. My opponent argues that I did not cite enough of the founders words to make this case but he never argued against these basic premises, so the debate instead focused on the definitions of a few select words or phrases as well as insinuations of an apocalyptic future where we all live under threat of impeachment should my position be accepted.

In the end it all comes down to our basic approach to interpreting written language. I’ve made clear what my approach is and why it is preferable. My opponent only asserts that you should accept his and resorts to fanciful absurdities as the alternative. That is as simple as it can be laid out.

One last point… In the last round Pro claims I did not respond to his Senate Precedent argument “for some reason”. The reason is because that was the rules of the debate (R3: Rebuttals to R2), I encourage the readers to consider this if any of the responses seemed confusing.

Thanks to ILikePie5 for this debate and to all for reading.