WASHINGTON -- With chances rapidly increasing that President
Donald Trump will be impeached by the House and tried in the Senate, an intriguing question has reared its head: Could he be ousted only to try to return to the
White House in 2020 in a Trumpian bid for redemption and revenge?Like so much of the coming impeachment showdown, that decision rests entirely with the Senate. The Constitution famously grants senators the sole power to convict and remove a president -- something that has never been done. What is seldom discussed is a more obscure clause of the Constitution that allows the
Senate discretion to take a second, even more punitive step, to disqualify the person it convicts from holding "any office of honor, trust or profit under the United States."Imposing that penalty would effectively bar the president from reclaiming his old job. In an added twist, tacking on the extra punishment requires only a majority vote in the Senate, not the two-thirds -- or 67 senators -- required to convict.For now, the idea of disqualifying Trump is the remotest of hypotheticals, since it would first require the Senate to vote to impeach and remove him. That seems far-fetched, given how little appetite
Republicans in the chamber have shown so far for deserting him, despite the flood of damaging revelations that have come forth in the impeachment inquiry. But if nearly two dozen Republicans did vote to impeach him, it would take only a simple majority to banish him from the presidency for life.The little-known constitutional quirk -- which has been applied unevenly in the cases of federal judges removed from office -- is only one example of what can happen in the freewheeling process of a presidential impeachment, an exceedingly rare and constantly evolving proceeding that is replete with untested precedents.The likelihood of an impeachment trial has senators and aides reading up on the process, with a lot to digest. Uncertainty is rife. Could the Senate censure Trump as an alternative to ousting him, a proposal that was defeated on procedural grounds during the 1999 impeachment trial of President Bill Clinton? Is a motion to dismiss the articles of impeachment in order -- and if so, when?Then there are much larger questions. Could new revelations about Trump's efforts to pressure
Ukraine to smear his political rivals shake Republicans from strongly backing him? How would
Congress impose its will on the president, and would he comply? Would the courts intervene, and what would they have to say?Some constitutional scholars wonder whether the disqualification clause even applies to a president, but the consensus is that it was written precisely for that purpose when the authors of the Constitution gathered in Philadelphia in 1787."If we know anything about what the framers were particularly thinking of when they were drafting the impeachment clauses, it was that they had the president clearly in mind," said Frank Bowman, a constitutional law professor at the University of Missouri and author of "High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump."Now 73, Trump might not even be interested in running again if he were ousted by a Senate dominated by members of his own party. But for a president who is always spoiling for a fight, it might be sweet payback to be reelected by voters after
Democratic and
Republican lawmakers banded together to give him the boot.At least one constitutional expert said that given the nature of the allegations against Trump -- that he abused his power to enlist foreign help in next year's
election -- disqualifying him would be an illogical penalty."If the impeachment is based on the Ukraine phone call and activity around that, and the idea is that he is improperly using his office to get dirt on his opponent, the remedy to that is to remove him from office," said Edward Foley, an election law authority and constitutional law professor at The Ohio State University's Moritz College of Law. "If the fear is the incumbent can't fight a fair fight, then disable the candidate's ability to not wage a fair fight."Of the eight federal judges who have been removed from the bench for crimes or misconduct, just three were disqualified from future office. The most notable person who was not barred was Rep. Alcee Hastings, D-Fla. Hastings, a former federal district judge, was tossed out by the Senate in 1989 on bribery accusations despite being acquitted in a criminal trial, only to be elected in 1992 to the House, where he still serves. (Some scholars argue that an ousted federal officer could not be barred from running for Congress in any event.)The case of Hastings was a cautionary tale for congressional officials handling the impeachment in 2010 of Judge G. Thomas Porteous of Louisiana on bribery and perjury charges. They made sure to not only convict and remove the judge but to disqualify him as well.Yet disqualification remained something of an afterthought, and the Senate nearly missed its chance to do so. After the vote to convict Porteous, which automatically carries the penalty of removal from office, senators raced for the exits amid confusion over whether a second vote was needed on the future ban. It turned out one was, and senators were called back to cast a hasty vote of disqualification, which passed 94-2.That overwhelming margin was not needed. The Senate has concluded, based on its own precedents, that disqualification can be done with a simple majority. The Constitution explicitly requires a two-thirds vote for conviction but does not specify the margin needed for disqualification, so parliamentarians have ruled that the default for Senate votes is sufficient.Some scholars believe that such a potentially significant penalty should require a more definitive vote, arguing that a two-thirds supermajority should be the standard for both punishments."It should be invoked through the same kind of vote," said Michael Gerhardt, a constitutional law professor at the University of North Carolina and author of "Impeachment: What Everyone Needs to Know.""It is not clear why one should be easier than the other," he added.The lower threshold has driven some speculation that even if the Senate did not convict Trump, it might still be able to disqualify him from future office on a simple majority vote. But that notion is generally dismissed as unconstitutional, since the ban on future office has to flow out of conviction on articles of impeachment."It is a sentencing provision," Bowman said.This article originally appeared in The
New York Times.(C) 2019 The New York Times Company