Revised from an Earlier Essay: Disqualification and Impeachment Or,The Framers’ Mistake.
I wrote awhile back that the Framers and Alexander Hamilton made an error. The error I saw at that time was in establishing the wrong set of people as jurors in an impeachment trial. We now know that those jurors can too easily become accomplices — as we observed this last January in the Trial of Donald John Trump. And these accomplices will then engage in something that those involved with criminal law call “jury nullification.”
It has now been some 230 years later after Hamilton and the Framer’s mistake and it has proved to be a grave error; for we now can see that a politically-craven Senate — just as in the old Roman Republic — will lack the political courage or capacity to temper the overweening power of a corrupted Executive — especially in an age of powerful media and mass communications — an age of the cult of personality.
For if an unchecked and lawless executive can make or find common purpose with one-half of the legislative branch by dint of political influence and convenience, they become capable of paralyzing its legislative ability to carry out oversight, legislation or impeachment and removal.
We can. see in our own time that the purgative of Impeachment will fail even as means of exposure for political corruption and constitutional overreach if the Senate majority has endeavored to conspire with the corrupt Executive and its minions.
I doubt the Framers foresaw these “cross-branch” constitutional conspiracies, and consequently felt confident in placing the sole power to try impeachments in the Senate — never expecting a modern corrupt president could transform a Trial by the Senate into a gathering of his own accomplices.
But this is exactly what America has witnessed — a jury of accomplices which refused to even hear from witnesses who might not only accuse the constitutional defendant but actually denounce the jurors themselves.
So in this respect, the Framers plainly failed. For they could not anticipate the scurrilous and pusillanimous choice the Senate might one day make as a majority of its members tied their own political fortunes to an inept but terribly influential president.
But what if those Senators had been given different choices within the constitutional framework? What if the Senate had been allowed to choose a secondary option other than conviction and removal in entering its impeachment verdict? Suppose the Framers had designed an impeachment trial clause authorizing the Senate to vote by a simple majority for the future disqualification of the impeached officer — a clause that would read: “And no Person shall be convicted and REMOVED without the Concurrence of two thirds of the Members present. BUT ANY PERSON MAY BE DISQUALIFIED to hold and enjoy any Office of honor, Trust or Profit under the United States BY A MAJORITY OF THE MEMBERS PRESENT.”
By this minor change, the commonly-made anti-majoritarian objections to impeachment and removal could be largely eliminated. An impeachment would not be seen as an all-or-nothing proposition, an undoing of the electoral outcome and the “will of the people.”
Yet, by allowing the Senate to vote wholly separately on the issue of constitutional disqualification to hold any future office of “honor, Trust or Profit under the United States” the Senate would be empowered to perform the political equivalent of “ostracism.”
Plainly, this would not happen lightly. It would require the majority of the House of Representatives to concur with a majority of the Senate to hold a constitutional officer subject to the penalty of disqualification. And while no president has heretofore been removed by a senatorial super-majority, past presidents might well have been subject to future disqualification by a majority vote in the Senate.
The 1868 Impeachment Trial of Andrew Johnson resulted in a 35–19 vote — falling one vote short of the two-thirds for removal; yet, it would have been more than sufficient for a future disqualification.
The second impeachment trial in our history, of President William Jefferson Clinton, ended in one vote of 50–50 as to the article accusing him of Obstruction of Justice — thus, Clinton would not have been disqualified (or removed).
Donald Trump’s Senate votes of 47–53 and 48–52, respectively, would avoid “disqualification;” but we still must ask how that vote might have changed if Senators recognized the possibility of removing Donald Trump from the ballot in 2020. And given the post-verdict pronouncements by Senators that the case against President Trump was proved by House Managers, the probability of a majority vote for disqualification would seem to increase if the fear of political reprisal post-impeachment trial was removed.
The Framers could not be perfect. They had to recognize this both in their wording of the Constitution’s opening language and its aspirational goals that we “form a more perfect Union,” and in the anticipation of amendments themselves.
The recent acquittal of a President who by most fair-minded evaluations of the evidence no longer. deserves to be in office but who easily escaped the overwhelming hurdle of a two-thirds vote for removal indicates that Senate jurors should have available a “compromise verdict and sentence” of disqualification.
It is time to change the Constitution. It is once more time to endeavor to create a more perfect Union.
-Albert Turner Goins