The Senate Should Dismiss the Article of Impeachment





This matter comes before the United States Senate on Defendant’s Motion to Dismiss. Because Defendant is no longer president, vice president, or a civil officer of the United States, the Article of Impeachment should be dismissed for lack of jurisdiction.

I. Background

Defendant is accused by the House of Representatives of “Incitement of Insurrection.” This charge results from a riot that occurred on January 6, 2021, during a joint session of Congress. Defendant and others gathered in Washington, D.C., were concerned about various irregularities in the presidential election and the efforts of state courts and state election officials to alter state election law despite the Constitution’s clear command that such matters rest with the state legislatures.

Defendant did address a large crowd of people on that day and stated that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Upon hearing of the events at the Capitol turned from peaceful to violent, the Defendant took actions to curb the behavior. For example, Defendant posted the following on Twitter: “But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt.” Moreover, in the days after January 6, Defendant continued to call for peace and healing: “Now is the time for our nation to heal. And it’s time for peace and for calm. Respect for law enforcement is the foundation of the MAGA agenda.”

On Wednesday, January 20, 2021, Defendant’s term of office ended and he returned to private life. Six days later, members of the House of Representatives delivered the Article of Impeachment to the Senate. At the time of delivery, Joe Biden held the office of President of the United States. Defendant was in private life in Palm Beach, Florida.

II. Legal Argument

Because Defendant is not an elected or appointed officer of the United States, he is not subject to impeachment. The Constitution in Article II, Section 4, provides: “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.” In the Philadelphia Convention, the issue of executive removal was discussed only in the context of a sitting president. For example, James Madison cited instances where after election the president could lose his mental faculties or pervert his administration into a scheme of oppression. Hence, some constitutional method for removal was necessary. A main concern of the delegates was making the sitting president too dependent on another branch of government. Hence, the mention of high crimes and misdemeanors and the supermajority requirement in the Senate.

In Federalist No. 65, Alexander Hamilton described impeachment as an inquiry into the actions of “public men” as opposed to private citizens who are not in office. Importantly, in Federalist 69 Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The logical interpretation of this statement is that while in office the president can be impeached. After he leaves office, legal remedies must be sought in state or federal court systems.

Moreover, in discoursing on Article II, Section 4, Mr. Justice Story in his Exposition on the Constitution describes the constitutional provision as enumerating “who shall be liable to be removed from office by impeachment.” Obviously, a person must be in office to be removed. This is the general context and understanding of impeachment.

Opponents of Defendant’s Motion will no doubt point to Article I, Section 3, which provides: “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.” Hence, they argue that one does not have to be in office to be disqualified from holding another office. Such a reading is a stretch of the text. The natural language is that one must first be in office, be removed by a two-thirds vote in the Senate, and thus be disqualified from ever holding another office of honor.

Although not strictly a legal argument, Defendant expects opponents of his motion to raise the specter that absent the Senate accepting jurisdiction over this matter, then a future official would be emboldened to take nefarious actions on the eve of departure because he could not be tried in the Senate. Defendant submits that if an individual with malicious intent sought to engage in egregious misconduct, say, stealing from the public purse, conviction in the Senate is no deterrent. The Senate, sitting as a court, has no power to imprison, fine, or forfeit assets. The real deterrent to presidential misconduct is the tarnishing of a historical legacy, rather than avoidance of Senate trial and conviction, which is, with due respect, more theatre than legal proceeding.

In summary, the plain language of the text and historical commentary indicate that impeachment is a sword to be unsheathed only against malefactors holding office. The main point of impeachment is to remove the malefactor from office and thus end his reign of folly or crime. Defendant is no longer in office. He cannot be removed from office and is not subject to impeachment.

III. Conclusion

Impeachment is inherently political. Defendant, having already been through a show trial in the Senate that resulted in his acquittal, knows this to be true. However, unlike the prior trial, Defendant is not an officer of the United States. Because Defendant no longer holds public office, he cannot be put on trial in the Senate for allegedly inciting an insurrection. Accordingly, the Senate should dismiss the Article of Impeachment for lack of jurisdiction.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls.
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