Washington Post columnist Michael Gerson’s February 8, 2021 column framed his argument
in favor of impeaching President Trump as “Trump supporters want us to believe the Framers were fools.”
“How else to understand their interpretation of impeachment,” Mr. Gerson asked, before noting that “as the Senate trial begins, the main argument of Trump’s lawyers — repeated ad nauseam in their written response to the House trial brief — is that their client can no longer be impeached because he is no longer president. ‘The constitutional provision,’ it reads, ‘requires that a person actually hold office to be impeached’.”
Mr. Gerson objects to what Mr. Trump’s lawyers asserted in their trial memorandum, specifically that:
Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio as a legal nullity that runs patently contrary to the plain language of the Constitution. Article I, Section 3 of the Constitution states “[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor…” (emphasis added). Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, “disqualification” to hold future office, the fact that the Senate presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.
Such a defense relying on the plain language of the Constitution is an absurdity asserted Mr. Gerson.
Of course, what is the plain language of the Constitution to me, and to Mr. Trump’s lawyers, may not be so plain to Mr. Gerson, so let’s engage in a thought experiment to see where his analysis takes us.
Mr. Gerson says:
If only current officeholders can be impeached and convicted, only those officials who feel confident of Senate acquittal would choose to remain in office until the vote. The incentive structure of this system would be perverse. As a practical matter, disqualification would be imposed only on officials who think they have a chance at Senate acquittal, decide to risk a vote and then lose. Those who are confident of Senate conviction would always avoid disqualification by strategically resigning. The worst offenders would never face the full range of penalties.
So, if former office holders can be impeached, could Mr. Gerson’s old Boss, President George W. Bush be impeached by vengeful Democrats for taking the United States into war with Iraq?
After all, “Bush lied, people died,” and the CBO estimated that United States has spent $2.4 trillion and counting on the war – with no end in sight we might add – surely such lies, as former President Bush uttered in his “Mission Accomplished Speech,” are of a kind with the claims against former President Trump.
And, as Professors Neil J. Kinkopf and Keith E. Whittington wrote for constitutioncenter.org: “While still serving as a member of the House of Representatives, Gerald Ford once said that impeachable offenses are whatever a majority of the House considered them to be.”
So clearly, according to Mr. Gerson’s standard, former President Bush could be impeached by a vengeful Democrat majority in the House on the basis of the Jerry Ford standard and nothing else.
And what of Mr. Gerson himself? As a former civil officer of the United States could he be impeached?
After all, Mr. Gerson defended former President Bush, he may have even written some of the lies the former President told, the fact that he is no longer a “civil officer of the United States” is irrelevant according to the Jerry Ford standard, and Mr. Gerson’s own interpretation of the Constitution.
As for me, as a former civil officer of the United States, I shudder to think what charges I could be impeached for, after all as Managing Editor of ConservativeHQ.com my job is to incite opposition to what the Democrats are doing, and to urge conservatives to “fight like hell” and “peacefully and patriotically make your voices heard,” the exact same things for which former President Trump is being impeached.
Call the toll-free Capitol Switchboard (1-866-220-0044), tell Senators you oppose the unconstitutional and unjustified impeachment of former President Donald Trump. Tell them a former President cannot be impeached, no matter what Michael Gerson says.
incitement of insurrection
ex post facto laws
bills of attainder
Right to Remain Silent