One of the stunning developments in recent days is the rush to embrace the notion that because Donald Trump is no longer in office, he cannot be tried for abuse of office for which he was successfully impeached during his time in office. This idea has been attractive to GOP Senators who do not wish to confront the assault on the constitutional order directly for fear of offending their supporters — including many supporters who are just fine with insurrection and violence.
The conservative constitutional scholar Keith Whittington has detailed why original intent, original meaning, and the structure and values of the Constitution all justify a Trial of a former President who has been impeached for a crime more serious than most have imagined ever possible by the nation’s chief executive. Whittington has written several pieces detailed his view, including one that responds directly the the most distinguished jurist on the other side: former Judge Michael Luttig.
Ignoring this detailed case, today Stephen Wirls writes in Law and Liberty that Alexander Hamilton is clear in The Federalist that a president who is no longer in office cannot be impeached and tried for crimes committed while he was in office.
Readers of The Constitutionalist could use this piece by Wirls as a good example of a thoughtless and flat footed reading of The Federalist. It is a great example of why reading a text also requires thinking about what one is reading.
Wirls makes at least several mistakes: 1) he quotes Hamilton’s description of the result of an impeachment conviction to be “perpetual ostracism from the esteem and confidence and honors and emoluments of his country” not comprehending that removal from office itself does not accomplish this and that it remains a primary purpose for the trial of Trump. Wirls seems to think that perpetual ostracism follows from a removal upon conviction — but of course, it does not. One can be convicted and removed and not disqualified from future office; 2) Wirls notes that Hamilton describes the primary purpose of a trial to be “a method of national inquest into the conduct of public men” and assumes that once out of office a president is not longer a public person. This cramped reading glosses over the entire idea of a public inquest into conduct. Wirls makes the least important aspect of the idea the most important and the most important aspect the least important; 3) And most strikingly, these remarks in Federalist #65 by Hamilton are all part of a case justifying the use of the Senate as an institutional locus for an impeachment trial rather than the Supreme Court. Making this case, Hamilton reports that British practice was the model for our Constitution. He reports that in Britain the lower house impeaches and the upper house conducts the trial. Wirls neglects to mention this model at all. And more striking still, Wirls ignores the fact that at the very time our Constitution was drafted, modeled on this British practice, Edmund Burke was initiating the impeachment and prosecution of Warren Hastings for his abuse of office as Governor General in India. Hastings was no longer in office, and indeed his trial, a national inquest, took more than a decade.
Readers of The Constitutionalist can usefully compare Whittington, who attempts to address the best arguments he can find on the other side, with Wirls, who offers a good example of a tendentious argument.