What the Founders Would Have Done with Trump
An Originalist Case for Trying, Convicting and Disqualifying a President After He or She Leaves Office
'Donald Trump has now been impeached by the House of Representatives for the second time but will not stand trial before the Senate until after he has left office. Senate backers of the president seem to be coalescing around the argument that at that point their body will no longer have jurisdiction over the by-then ex-president.
The majority of impeachment scholars maintain that the impending trial is perfectly proper. An insistent minority urge the opposite. The arguments so far focus primarily on the text of the constitution and on three prior impeachments: . . . Even though Article II, §4, renders all “civil officers” . . . impeachable, the president was the nearly exclusive focus of all the impeachment debates at the Constitutional Convention.
The delegates supported the ouster of a president for personal corruption, egregious incompetence, and betrayal of the nation to foreign powers. But a singular concern of the Framers, . . . was the danger of a demagogue rising to the highest office and overthrowing republican government. . .
The unwritten British constitution was the Framers’ patrimony. In the wrenching process of resisting and then freeing themselves from British rule, they had studied and debated its every nuance. . .
The impeachment mechanism written into the American Constitution owes its structure to a set of very specific lessons the Framers drew from British and classical history.
Impeachment was well known to the Framers as an invention of the British Parliament, crafted as a legislative tool . . .
But they were every bit as conscious as the British that merely removing an officeholder from power would not necessarily neuter the threat such a person could pose to the Republic. The particular threat that haunted the founding generation was the demagogue. . .
In 1778, in the midst of the Revolution, George Washington wrote to Edward Rutledge complaining that, “that Spirit of Cabal, & destructive Ambition, which has elevated the Factious Demagogue, in every Republic of Antiquity, is making great Head in the Centre of these States.”
But the idea at the bottom of the insult was the Framers’ conclusion . . . that republics were peculiarly vulnerable to demagogues – men who craved power for its own sake, and who gained and kept it by dishonest appeals to popular passions. . .
However, the Framers expressly rejected the idea that periodic elections alone, . . . would be sufficient proof against a president either corrupt or with aspirations to tyranny. Accordingly, they adopted impeachment, but with two major innovations from British practice. . .
But Article I, Section 3, does not limit the consequences of conviction to removal. It goes on to permit “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” . .
How is all this relevant to the apparently technical question of whether a president may be tried after he leaves office?'>>>
https://washingtonmonthly.com/2021/01/17/what-the-founders-would-have-done-with-trump/?
