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Senators Cannot Constitutionally Disqualify Someone Not Removed From Office By Impeachment

Michael Kaarhus
00:29 Friday, Jan. 22, AD 2021 GMT
Shangri-La

Here I argue that, in an impeachment trial, the Senators cannot Constitutionally disqualify a non-office holder, such as Donald J. Trump, that was not removed from office by impeachment. Art. I, Sect. 3 says:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States;... (from Art. I, Sect. 3, U.S. Constitution. My emphasis)

Disqualify Trump Senators might not be two-thirds of the Senate. But for the sake of argument, let’s suppose that they are two-thirds. Could they legitimately and Constitutionally disqualify Mr. Trump?

No. The Constitution does not say one or the other. It says one and the other, indicating a process: first, if two-thirds want it, removal by impeachment, then, if two-thirds want it, disqualification. In an impeachment trial, the Senators therefore can remove from office. The Senators can both remove from office, then disqualify. But they cannot disqualify unless they first removed the person by impeachment. Since Mr. Trump is already removed from office by other means (an election), the Senators cannot remove him by impeachment. Therefore, they cannot Constitutionally disqualify him.

If you disagree, remember that, as Rush says, “Words mean things”, including the words, true and false and the Boolean and.

Let’s say that you want your computer to run a standard function called disqualify(); and by law, disqualify() can be run only if the variable removed_by_impeachment is true. The pseudocode would look something like this:

holding_office = false;
removed_by_impeachment = false;
if (holding_office) then {
    remove_from_office();
    if (removed_by_impeachment) then {
        disqualify()
    }
}
else {notrial()}

In the above code, holding_office must be true, in order for the conditional to allow remove_from_office(), test removed_by_impeachment and if true, then allow disqualify() to run. Since holding_office is false, the first conditional bypasses everything past that, and takes the program to notrial(). That is how it is supposed to work. But that is not exactly the case with this impeachment, because the Democrats did it in the last hour of then-President Trump’s tenure in office, after the election had already scheduled him for removal.

Since Mr. Trump is now not holding office, the above can be simplified:

not_holding_office = true;
removed_by_impeachment = false;
if (not_holding_office and removed_by_impeachment) then {
    disqualify()
}
else {notrial()}

In the above code, not_holding_office is true, so that part of the and conditional passes. However, removed_by_impeachment is false; the and conditional fails, and takes the program to notrial().

To summarize, the Constitution does not permit:

if (not_holding_office and not_removed_by_impeachment) then {disqualify()}

The Constitution does permit:

if (not_holding_office and removed_by_impeachment) then {disqualify()}

However, the reason that Mr. Trump is not holding office is that he lost the election (its fraudulent nature is irrelevant here); he was not removed by impeachment. Since he was removed, but not by impeachment, the Senators in an impeachment trial cannot remove him. Therefore, they cannot Constitutionally disqualify him from future office; the procedure does not logically or legitimately go there.

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