• Home
  • Opinion
  • Quizzes
  • Redistricting
  • Sections
  • About Us
  • Voting
  • Events
  • Civic Ed
  • Campaign Finance
  • Directory
  • Election Dissection
  • Fact Check
  • Glossary
  • Independent Voter News
  • News
  • Analysis
  • Subscriptions
  • Log in
Leveraging Our Differences
  • news & opinion
    • Big Picture
      • Civic Ed
      • Ethics
      • Leadership
      • Leveraging big ideas
      • Media
    • Business & Democracy
      • Corporate Responsibility
      • Impact Investment
      • Innovation & Incubation
      • Small Businesses
      • Stakeholder Capitalism
    • Elections
      • Campaign Finance
      • Independent Voter News
      • Redistricting
      • Voting
    • Government
      • Balance of Power
      • Budgeting
      • Congress
      • Judicial
      • Local
      • State
      • White House
    • Justice
      • Accountability
      • Anti-corruption
      • Budget equity
    • Columns
      • Beyond Right and Left
      • Civic Soul
      • Congress at a Crossroads
      • Cross-Partisan Visions
      • Democracy Pie
      • Our Freedom
  • Pop Culture
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
  • events
  • About
      • Mission
      • Advisory Board
      • Staff
      • Contact Us
Sign Up
  1. Home>
  2. Government Ethics>
  3. trump administration>

Could President Trump be impeached and convicted – but also reelected?

Austin Sarat
November 07, 2019
President Donald Trump

"So even if President Trump were impeached and convicted, there is the possibility that he could be reelected to the same office from which he had been removed," writes Austin Sarat.

Drew Angerer/Getty Images

The ConversationSarat is a professor of jurisprudence and political science at Amherst College.

The launching of an "official impeachment inquiry" into President Donald Trump's conduct has sailed America into largely uncharted waters.

While there have been demands for the impeachment of many presidents, just three previous ones – Andrew Johnson, Richard Nixon and Bill Clinton – have faced formal impeachment inquiries, and the Senate convicted none of them. None of those three sought reelection.

After Johnson's acquittal, he was denied his party's presidential nomination. Nixon and Clinton were in their second terms already and could not run for reelection.

Trump, however, is already doing so.

As a scholar of American legal and political history, I have studied the precedents for dealing with this strange conundrum. A little-known wrinkle in the Constitution might allow Trump to be reelected president in 2020 even if he is removed from office through the impeachment process.


The constitutional framework

At the time the Constitution was ratified in 1788, many of its authors regarded impeachment as an improvement over the violent methods often used in Europe to get rid of corrupt rulers. Nonetheless, they recognized the dangers that impeachment would always present.

As if commenting on the current moment, Alexander Hamilton noted in 1788, that it will "agitate the passions of the whole community, and … divide it into parties more or less friendly or inimical to the accused. In many cases, it will connect itself with preexisting factions and will enlist all their animosities, partialities, influence, and interest on one side or the other."

Sign up for The Fulcrum newsletter

The Founders were careful about defining and regulating this dangerous power. They gave the House of Representatives "the sole Power of Impeachment," and specified that the Senate "shall have the sole Power to try all Impeachments," with a two-thirds majority required for conviction. They specifically prevented the president's pardon power from reversing impeachments.

They also limited the possible punishments that the Senate may impose to "removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." But they only required that an impeached and convicted official "be removed from office" – but did not mandate that the person also be disqualified from holding a future office.

Nowhere does the Constitution define the standards for disqualification. Moreover, the Senate has declined to establish a standard.

But, as Ohio State University law professor William Foley points out, Senate procedures require separate votes to convict someone of an impeachable offense and to impose a disqualification penalty.

So even if President Trump were impeached and convicted, there is the possibility that he could be reelected to the same office from which he had been removed.

Impeachment and disqualification

Of the 17 historic impeachment proceedings brought against judges and other officials who rank lower than president, 14 went to trial in the Senate and eight resulted in a guilty verdict.

In only three of those cases did the Senate bar – or "disqualify" – those who were convicted from holding office in the future.

First was West H. Humphreys, a federal district judge from Tennessee at the start of the Civil War, who refused to hold court and announced his support for the Confederacy. He was impeached and disqualified on charges of neglecting his judicial duties and waging war against the government of the United States.

In 1913, Robert W. Archbald, an associate judge of the United States Commerce Court, was convicted of the more prosaic offense of doing business with litigants before his court, and forever barred from holding office. The Senate found that he "willfully, unlawfully, and corruptly took advantage of his official position."

The third instance of removal and disqualification occurred in 2010. In that case, Congressman Adam Schiff, now one of the key players in the Trump impeachment hearings, took the lead in prosecuting Judge G. Thomas Porteous Jr. of Louisiana. Porteous was found guilty of receiving cash from lawyers who had dealings in his court, of fraudulent dealings with creditors and of misleading the Senate during his confirmation proceedings.

History also reveals one curious instance of impeachment without disqualification, in which the person convicted ran for and won another office. Federal district judge Alcee Hastings of Florida was removed from office in 1989 for perjury and conspiring to solicit a bribe. Since 1993, he has been representing a Florida district in the U.S. House of Representatives.

Other people charged with perjury and bribery, as well as crimes like tax evasion, also have been convicted but not disqualified. In the end, it's hard to say what distinguishes those cases from the others.

What the Senate might decide

Professor Foley writes that if President Trump is impeached and convicted, the Senate should follow the Hastings precedent and not prevent him from running again for office. In Foley's view, the American electorate should "decide whether Trump, despite his attempt to subvert the system, should have another chance."

Given the timing of an impeachment vote in the House and a Senate trial, a verdict could be rendered with the 2020 general election campaign in full swing, or even between Election Day and inauguration. This would create serious doubt and deep division about whether a president removed from office could legitimately take the oath of office again. Such a result might, as the president himself tweeted, "cause a Civil War like fracture in this Nation from which our Country will never heal."

To avoid that severe a split, uphold the Founders' view of impeachment and minimize the perils of division that they feared, the Senate should, if the president is convicted, heed Alexander Hamilton's advice and disqualify him too, ensuring that impeachment and removal from office results in "a perpetual ostracism from the esteem and confidence and honors and emoluments of … (this) country."

This article is republished from The Conversation under a Creative Commons license. Read the original article.

From Your Site Articles
  • Three impeachment scenarios dangerous for democracy - The ... ›
  • Twin rulings on Trump's taxes tilt the balance of power - The Fulcrum ›
  • It's time to rethink the four-year presidential term - The Fulcrum ›
  • Trump's false victory claim rattles democracy again - The Fulcrum ›
  • Trump's false victory claim rattles democracy again - The Fulcrum ›
Related Articles Around the Web
  • Trump impeachment polls show public opinion shift since inquiry ... ›
  • Nancy Pelosi Announces Formal Impeachment Inquiry of Trump ... ›
  • Efforts to impeach Donald Trump - Wikipedia ›
  • Impeachment inquiry against Donald Trump - Wikipedia ›
trump administration

Want to write
for The Fulcrum?

If you have something to say about ways to protect or repair our American democracy, we want to hear from you.

Submit
Get some Leverage Sign up for The Fulcrum Newsletter
Follow
Contributors

Reform in 2023: Leadership worth celebrating

Layla Zaidane

Two technology balancing acts

Dave Anderson

Reform in 2023: It’s time for the civil rights community to embrace independent voters

Jeremy Gruber

Congress’ fix to presidential votes lights the way for broader election reform

Kevin Johnson

Democrats and Republicans want the status quo, but we need to move Forward

Christine Todd Whitman

Reform in 2023: Building a beacon of hope in Boston

Henry Santana
Jerren Chang
latest News

Is reform the way out of extremism?

Mindy Finn
2h

Changing pastimes

Rabbi Charles Savenor
2h

Political blame game: Never let a good crisis go to waste

David L. Nevins
20 March

Tipping points

Jeff Clements
20 March

Your Take: Bank failures, protection and regulation

Our Staff
17 March

Threats against Michigan women leaders highlight ongoing concerns over political violence

Barbara Rodriguez, The 19th
17 March
Videos

Video: The hidden stories in the U.S. Census

Our Staff

Video: We asked conservatives at CPAC what woke means

Our Staff

Video: DeSantis, 18 states to push back against Biden ESG agenda

Our Staff

Video: A conversation with Tiahna Pantovich

Our Staff

Video: What would happen if Trump was a third-party candidate in 2024?

Our Staff

Video: How the Federal Reserve is the shadow branch of the government

Our Staff
Podcasts

Podcast: A tricky dance

Our Staff
14 March

Podcast: Kevin, Tucker and wokism, oh my!

Debilyn Molineaux
David Riordan
13 March

Podcast: Civic learning amid the culture wars

Our Staff
13 March

Podcast: Winning legislative majorities

Our Staff
09 March
Recommended
Is reform the way out of extremism?

Is reform the way out of extremism?

Threats to democracy
Changing pastimes

Changing pastimes

Civic Ed
Video: The hidden stories in the U.S. Census

Video: The hidden stories in the U.S. Census

Political blame game: Never let a good crisis go to waste

Political blame game: Never let a good crisis go to waste

Big Picture
Tipping points

Tipping points

Big Picture
Video: We asked conservatives at CPAC what woke means

Video: We asked conservatives at CPAC what woke means