Democrats May Try 14th Amendment to Disqualify Trump With Simple Majority—Rick Green on Impeachment
What does the U.S. Constitution have to say about the current impeachment trial in the U.S. Senate? What does historical precedent say?
In this episode, we sit down with constitutional attorney Rick Green, a former Texas state representative and co-founder of the Patriot Academy.
It’s unlikely that the impeachment managers will persuade sixty-seven senators to convict former President Donald Trump. But separate from the attempt to convict, Rick Green expects they are exploring other means to disqualify Trump from running for office again.
“By raising the 14th Amendment issue, they are looking for an opportunity to get a vote that does not require two-thirds,” Green argues. How would this scenario work exactly?
This is American Thought Leaders, and I’m Jan Jekielek.
Jan Jekielek: Rick Green, so great to have you back on American Thought Leaders.
Rick Green: Jan, good to be back with you, sir.
Mr. Jekielek: Rick, as we’re taping right now, it is the morning after the vote for authorization of the impeachment trial in the Senate for former President Donald Trump. As everybody knows 56 votes came out in favor of proceeding with the trial. You are a constitutional educator and attorney. What are your thoughts about what happened here?
Mr. Green: Yes, the Constitution certainly has not changed. There have been a few minds changed by the arguments about whether or not the constitution allows for impeachment of a former president, someone that’s no longer in office. This is being debated hotly, of course, in legal circles. Like most major legal issues, there are two sides to every story.
There are those who believe that these clauses in the constitution can be pieced together to create an argument for impeaching a former president, something we’ve never done before, but that somehow we can change the language or put the language together to create this new scenario. Then there are those who have obviously been arguing that, look, this has never been done before for a reason. The founding fathers spoke to these things. They had experience with this very type of thing, trying to impeach a former officer—not a former president, they never dealt with that.
But there are definitely two sides to the story. I would argue that the text of the Constitution is very, very clear here, in terms of what is allowed in an impeachment. The clause for impeachment is very clear as to who can be impeached, and then what those punishments can be, and who presides over an impeachment when it’s the president. So there’s a lot of very clear things in the Constitution. I think the water is being muddied.
Jan, honestly, I think the reason it’s easy to get people confused on this is because it’s like many things in our culture right now and in our civics in our country. We don’t know who has authority to do what. We used to talk about jurisdictional lines. So we knew the Senate is supposed to do this, the federal government is supposed to do this, the states are supposed to do this. There were lines around that.
We’ve moved into this area where it doesn’t really matter. There are no lines. We go to government for answers to everything in our life. In this case, we look to any level of government to get the solution that we want, to get the outcome that we want, instead of really drilling down on the jurisdictional question of, “Do I have authority to hear this case?” Of course, that’s what the senators were debating when this all started, but those lines have become very, very blurry.
Mr. Jekielek: That’s really interesting. I want to ask you a couple of questions out of the gate here. There’s, in fact, quite a bit of ambiguity even about the meaning of the term impeachment. I was just speaking with Victor Davis Hanson the other day. He explained to me impeachment is indictment, as opposed to impeachment as a final step or something like this. So if you could just clarify for us impeachment versus conviction, because frankly, for anyone that’s not American, it’s probably a mystery. Then I have a few more questions in this vein to start us off.
Mr. Green: Sure. He’s exactly right, and uses exactly the right term. Impeachment is very much like an indictment. An indictment is where a grand jury will really only hear one side of the case, and based on what they hear, they’ll say, “Okay, we think there’s enough here to have a trial where we can hear from both sides.” Then you go have your actual trial, where a regular jury comes in and makes the final decision of guilt or innocence.
In the same way right here we have an impeachment by the House, that is based on what the House looks at and decides if there is enough to have a trial. The House decided that there was in this case, in the fastest way possible. Never before have we seen one without any due process, and in just a few hours, [they] chose to impeach. But nonetheless, that is their power under the Constitution, but all it does is basically say: you’re indicted. We’re actually saying we want to see a trial to see if you’re guilty or innocent. Then the Senate is the one that decides if they are going to convict, if they say he is guilty, or they will acquit if there aren’t enough votes to convict.
So he’s exactly right. Impeachment is like an indictment, and conviction happens in the Senate, and even then there will be the next step of what we would call sentencing if we were having a local trial on something. The sentencing would be according to the Constitution, a couple of options. They can say he’s convicted, therefore he’s removed and they can choose to possibly take the additional sentencing step which is disqualification as Article One, Section Three says. We’ve only done that three times, actually, out of the almost two dozen impeachment trials that we’ve had in the Senate, but they will have that choice, and it is a multi-step process.
Mr. Jekielek: I want to get back to this disqualification step in a moment, as well. The other question is, is this whole thing actually a judicial process? Because typically this happens—there’s a judge presiding, and there’s a jury, if it’s a jury trial. Here we have a lot of political actors involved, and it works differently. So explain this to me.
Mr. Green: When we have political actors involved, we get political theater. That’s a lot of what we’re getting here. You’re touching on a very, very important point here. Is this the judiciary now? Is the Senate now the judiciary that will try any citizen, because an impeachment is specifically for someone that is in office, according to the American Constitution.
I understand a lot of the experts on the other side of this equation don’t hold my opinion, along with other experts like Dershowitz. I’ve got liberal friends and conservative friends in the legal community that are with me on this in terms of my read of the Constitution, and some that are on the other side.
But virtually everyone agrees that impeachment in our Constitution is designed for those three categories listed in Article Two, Section Four, and that’s the president, the vice president and civil officers, people that are still serving in office. So we’re seeing a lot of theater here to basically say the Senate is now going to be the judiciary, because somehow a president could get away with doing something awful in the last few days of office. That was a lot of the rhetoric in the opening statements in the Senate, this idea of a January exception.
That is a made-up idea that somehow the president could do something terrible, and just because they resign or their term ends, there is no adjudication, and there is no accountability. It’s absolutely not true. That’s why we have a judiciary, which is what you’re alluding to. Is the Senate the only place that can be the judiciary or has it now become the judiciary?
It shouldn’t be. If a president does something that deserves some sort of criminal indictment and some sort of prosecution and they’re no longer in office, that’s absolutely available to the local DA [District Attorney] to do that. So this concept that’s being pushed right now in the trial—if we don’t convict Donald Trump he’s going to get away with doing horrible things and future presidents will be able to do whatever they want and get away with it—that’s a total red herring. It’s literally fantasy.
I thought the defense attorneys, one of the things that they did make a good case on in the opening was, “Look, this January exception thing is made up.” Nobody’s claiming on either side, that a president can do whatever he wants with impunity, and just because he’s out of office, no one can go after him. In fact, the Constitution speaks to that specifically, and says that they can still be liable for indictment and prosecution.
My fear is a separation of powers conflict here—the Senate becomes more and more the judiciary, as you just said. Now if they can go after someone that’s a citizen like Donald Trump is today, well, they can indict you. They can indict me. They can prevent us from running for future office. I know that was not the view of the Founding Fathers. When you abuse a constitutional provision in one instance, then other people will be able to abuse it in other instances in the future.
Mr. Jekielek: What is the significance of Chief Justice Roberts refusing to preside over this, in your view?
Mr. Green: Part of the challenge that the impeachment managers have in this case is that they are claiming on one hand, we have to impeach Donald Trump because he was the president. Then they’re trying to gloss over the fact that the Constitution clearly says that when the President is impeached and there’s a Senate trial, the Chief Justice will preside.
The fact [is] that the Chief Justice has said that he will not preside. Frankly, we all know why, because Donald Trump is no longer the president, and it wouldn’t be appropriate for him to do so in this case. I think that’s pretty glaring to a lot of people. The fact [is] that we have a Senator presiding over this case that will also have a vote, when the Constitution was very clear that you should not have one branch, just the legislative branch, in this case, the Senate, even just half of the of that branch, presiding and making the decision.
Part of the beauty of the way they designed this [is] if you’re going to go after the president, the executive branch, then you need to have both of those other two branches involved in that process. That’s why they put the chief justice to preside over a Senate trial for the president. So I think it’s a really bad sign. It looks bad, and it’s a bad precedent for the future, for any civil officer or former president or former vice president.
Mr. Jekielek: Let’s get back to the constitutional arguments. Are the arguments based on the Constitution? You said that they were elements of the constitution that were being strung together, inappropriately in your view, to make arguments. Break that down for me please.
Mr. Green: Yes, in order to make the case, the impeachment managers have to convince the senators that the Constitution does allow for an impeachment of a former president. So what they’ve done is they’ve taken the language from Article One, Section Three and separated some of these things. Then they’ve jumped over into the 14th Amendment, and used some of the language in Section Three of the 14th Amendment, as well.
The reason they’re doing that is because on one hand, they want to say “He’s the president,” and on the other hand, they want to say, “It doesn’t matter if he’s the president; he did something awful, and we can still impeach.” So putting those things together is the way that they’re trying to make their case. I view it like this. When we say political theater that’s literally what we’re talking about here.
This is common in all of politics. I thought the impeachment managers did a fantastic job of presenting this picture, trying to make it sound like this is exactly what the Founding Fathers wanted. It was very much theater; it was well done. It was masterful in the way that they took a few kernels of truth and they took a few phrases out of the Constitution that are obviously there. They even took a few historical stories.
They use those to weave those together to create a fantasy situation that has never been done in history, but it feels like it’s accurate and it’s true because of the little kernels of truth that were thrown out there. That’s frankly good political theater and effective in what they’re doing.
It’s wrong, in my opinion. It’s deceptive, because it’s being used to change the Constitution on a whim, simply by the Senate on their own changing the Constitution. Look, if people think it’s okay to impeach former officers and presidents, amend the Constitution. Article Five allows for that. They did that in England. We heard that even in the opening statements that this stuff was done.
We’ve heard several senators talk about impeaching former officers. State constitutions allowed for the impeachment of former officers. But we chose not to do that in the U.S. Constitution for good reason. To change that and suddenly go back to what England did, or what some of the states did at the time of the founding requires a constitutional amendment.
Mr. Jekielek: Rick, at the moment, the Democratic Party has basically complete control of government for as far as I can tell. They’ve got control of the House, the Senate and the administration. In this sort of scenario, how easy is it for them to basically change things like this?
Mr. Green: In the past, I would say, no, because there was usually a respect that if you had a very slim majority, like I would say not a super majority, but a very slim majority—in the Senate we’re tied 50-50. In the House, there’s a very slim majority leaning to the Democrats. Then of course, they have the White House. They do have both branches, the legislative and the executive, and both houses of the legislative. But to change history, to change the Constitution with such slim majorities is incredibly dangerous.
Now, George Washington warned about this very thing. My friend Jerry Newcombe has a great article out this week reminding us of his farewell address. He said, “When we get so partisan that we can’t reason together and that we will be vengeful against each other, when we have even the slimmest of majorities or power through that party, it will continue to separate the country. It will cause us to create this great divide, and it will be very hard to heal our nation. We’re going to see abuses of the Constitution if we do that.”
We’re seeing that in the country right now. So yes, they will use that slim power to try to change things. Depending on what they do in this trial, and depending on if they managed to create a conviction without two thirds—I’m sorry to go down that rabbit hole—a lot of people are thinking because they can’t get to 67 votes that nothing will happen here.
I do think they’re going to try to create a scenario where they piece together these different parts of the Constitution to be able to get a vote with a majority based on the 14th amendment and based on that part in Article One, Section Three about disqualification to still try to prevent Donald Trump from running for office.
Well, if they do that, and they create this scenario, I do think he’s going to have some good arguments to challenge that before the US Supreme Court. The problem is, Jan, the Supreme Court has said in the past that it has no say over impeachment and no say over the outcome of an impeachment trial, so appealing what happens here in the Senate is going to be very difficult. He’s going to have great arguments, but I think there’s a good chance the Supreme Court will punt.
I’m afraid that this slim majority believes that they can use that slim majority to abuse their power and that there will be no accountability, and that they are now a branch literally on their own, with no one to oversee them, none of that tug-of-war that the founders designed, those separation of powers and those checks and balances, that they can now rule with impunity and punish their opponents.
That’s so dangerous for our Republic. It sets a tone that is very, very negative for our country, certainly not uniting. I don’t think there’s any turning it around at this point. At least, hopefully, they won’t get to the 67, but just moving forward with the trial continues to create that divide.
Mr. Jekielek: A whole number of people I’ve seen commenting have been saying quite simply, especially because of this vote of 56 to 44, there’s basically zero chance that there will be a conviction. But you’re telling me right now something a bit different. How would that work?
Mr. Green: Yes, my concern is that by raising the 14th Amendment issue, they are looking for an opportunity to get a vote that does not require two thirds, and this is unchartered territory. So they may be able to make up the rules as they go here. The problem with the 14th Amendment claim, is that it requires that you have found someone that did in fact participates in some level of insurrection. You had a conviction in a court somewhere. You’ve had due process.
I don’t see any evidence that those in the 1860s who passed the 14th Amendment envisioned that the Senate would be the one to be the trier of fact in that case. It would be [required that] someone was convicted in a court of being a part of insurrection before you could say, “Now, they can’t run for office.” I don’t think they care about that. They’re going to connect that language out of the 14th Amendment to the disqualification from office in Article One, Section Three.
If I could go down that rabbit hole a little bit, that disqualification language is tied directly to removal from office. The way our Constitution was written, the way our Constitution has been used for throughout our history is that you cannot disqualify someone from office that you haven’t removed from office. So because those have been tied together forever, most people expected that if you can’t get to the two thirds required for removal from office, you can’t get to the disqualification from office.
But what I think they’re trying to set up by bringing in the 14th Amendment, is a way to ignore conviction of impeachment with two thirds and removal from office and simply go straight to a 14th Amendment claim that someone that was an officer of the United States participated in an insurrection. Of course, we haven’t got to whether or not anybody actually participated in an insurrection.
But let’s just assume for a minute that there are claims that did convince 51 senators of that, then they could use the 14th Amendment to say, “We’re going to disqualify based on that.” They’re already floating that idea. They’ve been putting out articles. They’ve had experts out there saying that this would be okay. There’s a real concern in my mind that’s what they’ll attempt to do, and just run roughshod over the Constitution and ignore the judiciary that’s normally needed for something like this.
Mr. Jekielek: You’re also saying that there’s potentially no appeal process. How does that work?
Mr. Green: Let me clarify on that. What the Supreme Court has said is that it did not have authority to review an impeachment trial and conviction. So if they now use the 14th Amendment—and they may go outside of the impeachment trial itself to do the 14th Amendment, they may try to just do a resolution that is passed through the House and the Senate—if that happens, I believe he will have appellate ability. He will be able to challenge that, going to the US Supreme Court. That’s something they’ve never ruled on before. So that would be new territory, there.
Mr. Jekielek: It just seems like there’s a whole lot of new territory here, from everything you’re telling me.
Mr. Green: I would say it’s a fantasy world. We’re living post-Constitution at this point, and we’re literally ignoring the constitutional history and the plain text of the Constitution. But I have to tell you, Jan, I thought that the impeachment managers were masterful in painting that picture.
It was worthy of an Academy Award—a Tolkien or Lucas could not have created a better fantasy world, in terms of what they tried to project to the senators that the constitution actually said. It was a well-done argument. And I think it’s important for us, actually, as citizens to go look at the Constitution ourselves, and not just listen to the silver-tongued rhetoric.
It’s just like any other trial. You walk into a trial. If trial attorneys are really good, they paint the picture that they want you to believe, and I’m afraid they’ve done that in this case. But it is new territory, and it ignores 240 years of history in the United States. And most importantly, it ignores the Constitution itself.
Mr. Jekielek: You started talking about exactly how their argument wasn’t sound in your mind. Can you break this down for me in detail. You’re saying that this was a powerful argument, but you’re saying it’s a wrong argument? Why is this argument wrong, in some detail?
Mr. Green: Yes, first of all, they convince everybody that if you don’t agree with what we’re asking for, that we will have rogue presidents doing anything they want, with no accountability. That is totally a red herring and false.
I thought the defense team did do a good job of going directly to that language in Article One, Section Three, saying that if a president or someone else under impeachment is convicted or acquitted, they can still be held liable by their local courts and DA’s and the judicial process, that someone that is tried as a former president could also be held liable. That whole image that was [initially] created was wrong.
But then just the basic legal argument—they were very good at basically ignoring Article Two, Section Four that says that the only categories of folks that we can impeach under our Constitution are very specifically the President, the Vice President, and civil officers, people that are in office. There was no mention of the 1799 trial, where the Senate decided that William Blunt was no longer in one of those three categories and could not then be impeached or have a conviction of his impeachment. There was no mention of that.
I hope that the defense team plans to raise that later in the trial. But they just ignored that and skipped to why impeachment is a good tool, and why we don’t want officers to be able to get away with anything that they do in office and not be held accountable.
They created the idea that the Senate is the only place that could ever happen, and that senators are the only ones that can do that, almost putting this burden on the senators to think that if if you don’t convict, you’re allowing future presidents to do even worse things than what we’re claiming that Donald Trump did.
That is an emotional argument, but it is not the reason for impeachment. Our Constitution is designed for someone that is in office, that we need to get out of office, because what they’re doing is so bad. So we have this very unique situation for the Senate to be the judiciary, instead of the judiciary be the judiciary, but they’ve tried to tie it to something that it was never intended to do.
Mr. Jekielek: In terms of the defense there’s been quite a bit of criticism of the defense, actually from both sides, and some support for it. What’s your overall take on how the defense went?
Mr. Green: I’m probably not as critical as what I’ve heard some people say. I thought it was important to lay out the dangers of this whole process itself, which I thought they did initially. There’s a part of us that wants them to go immediately to the constitutional defense, but doing the same job of painting the picture of what can happen if this goes wrong was important.
It was good that they did that. David Schoen did a good job of going specifically to these areas of the Constitution. The one thing that I thought they left out, that I would have liked to have seen more time on, was the impeachment manager spent a lot of time driving in on this phrase in the Constitution, “all impeachments.” The Senate has the authority to try all impeachments, and then they tried to make it sound like all impeachments could include things that impeachments under Article Two, Section Four didn’t include.
There needed to be a better explanation by the defense attorneys to say, “Wait a minute, they do have the authority to try all impeachments that are done according to the rest of the Constitution. You can’t separate those two.” It goes back to this thing of creating this fantasy world where all impeachments now means these new kinds of impeachments, or non-officers, non -presidents, non-vice presidents, which nothing in the Constitution actually authorizes.
So we’re back to that question of who has the authority, who has the jurisdictional lines? I agreed with a lot of what the impeachment manager said about things that we don’t want to have happen in our country, and how we do want to prosecute certain things. But we need to ask, who has the authority to prosecute that? Which court should this be in? Who has actual jurisdiction in this case? That was the real question on that day. That’s why they had to create this perception, this new perception of the Senate having jurisdiction in a case where it’s never had jurisdiction before.
Mr. Jekielek: The obvious question that comes to mind is we’ve learned, having been through two impeachments now, how much more of a political process impeachment is versus a traditional trial. Of course, there’s potential politicization in these scenarios as well. Wouldn’t the fear be of the typical citizen, that if the jurisdiction gets moved, as you were saying, into the Senate, that all these things become much more political processes than judicial processes?
Mr. Green: The result of that, Jan, is instability, because you start having the ability to remove officers so much more easily and just based on political whims. I can’t remember which attorney it was, they mentioned it on the opening day. But it is true. If you were watching the Bill Clinton impeachment, you were seeing the first impeachment of your lifetime. If you were alive to see that, you have now seen three impeachments in one lifetime. Prior to Clinton, no one had seen an impeachment for over 100 years.
Now all of a sudden, [it’s] three impeachments in just a few years. It’s a dangerous situation where, as you said, it becomes political. The problem is the due process in the impeachment trials. There is due process there, if it’s done correctly. There wasn’t in this case, and I did think the attorneys laid that out very well. That’s what turned off a lot of the legal community in this instance. The House just rammed this through without any of the due process, and even the Senate very little due process here.
When Clinton was impeached, it was months and months of due process. When you go back to Johnson, it was close to a year. There was a lot of time spent on these impeachments, and very little in this particular case. So you’re basically creating a scenario where one side gains power, and they can finger to the wind if they’ve got that power for just a little while.
They can silence their opposition using impeachment, they can potentially completely remove their opposition from being able to run for office in the future, which silences not only the candidate, it silences the people that supported that candidate.
That argument was made in the Senate as well, that if you prevent Donald Trump from running for office in the future, you’re actually taking away the ability of those 75 million people being able to vote for who they might want to vote for in 2024. We don’t know, of course, who’s going to run in 2024, but this takes that option off the table. To have that power in the Senate’s hands as a political tool, instead of an actual tool of justice is very dangerous.
Mr. Jekielek: It sounds that way, and even irrespective of what happens now. Is impeachment now going to be used as this kind of tool? Is the first thing that’s going to happen when the Republicans gain power in the House? Are they going to be running out to impeach presidents?
Mr. Green: Yes, you’re right. Regardless of the outcome of this particular trial, it’s going to make it so much easier for either party to scream impeachment. We’ve seen that from the beginning. They showed that video in the opening statements, that there were Democrats screaming for impeachment from even before the election was over in 2016, but certainly since 2016, over and over and over again.
In the past, when that has happened from either side—there were Republicans that did that during Clinton’s presidency. In the past, it was usually this lone voice out there, or one or two voices that would do that. People would say, “Well, yes, both sides have their crazies that will do that sort of thing.” But now apparently, the crazies are in charge, because it’s not just a few people filing that in the House. It’s actually getting done. It’s getting through the House, and it’s actually moving to a Senate trial. You’re exactly right, it’s going to be so much easier in the future for either party to do the exact same thing.
That’s really the danger. That’s what the defense attorneys were initially saying in the opening statements, “Stop for a minute. Let’s all take a breath. Realize what you’re doing just by going forward with the trial.” If they had voted down having the trial, and instead of just 44 members of the Senate saying this is a bad idea and it’s unconstitutional, if it had been 51 that had done that, then that would have been a rubber stamp to say, “You’ve really got to have a constitutional process here, and we’re only going to do the impeachments when it is someone that’s in office, so that we know we’re reaching that bar of something that rises to that level, instead of just the political whims.”
Mr. Jekielek: Tell me about this 1799 case that you mentioned earlier that is going to get a lot more play in the near future.
Mr. Green: Yes, ironically, Jan, this was a signer of the Constitution that was impeached. His name was William Blount. He had been involved in a land scam that [John] Adams uncovered. He brought it to the Senate. Blount had become a U.S. Senator. He was a U.S. Senator at the time. So the Senate voted to remove him, not under impeachment. There’s a separate part of the constitution that allows the Senate to remove one of their own officers or the House, to remove one of their own officers with a two-thirds vote. And so they did. They kicked him out of the Senate.
Well, the House decided they were going to impeach anyway, and so they impeached him. It goes over to the Senate. Blunt was defended by a guy named Jared Ingersoll. He was another signer of the Constitution. He was greatly respected by the members of the Senate. There were still some other signers in the Senate as well.
This was at a time—think about 1799. You’re only 12 years after the Constitutional Convention. A lot of these folks were still in government. The ones that actually had put the Constitution in place, that had debated what types of impeachments they would want under this new system, this very unique constitution in the history of the world. They were still around, so you didn’t have to just read their writings. They were part of the voices in this.
Jared Ingersoll, one of those voices, defended William Blunt and said, “He’s not in office anymore. He’s not someone that you could under our Constitution, impeach.” That argument won the day. Thomas Jefferson actually presided.
I have to correct what I said earlier, they did mention the Blount case. In fact, I thought they distorted the facts of the Blount case, when the impeachment managers laid out their case initially. They talked about this and tried to create this image that because he was impeached, and there was a trial that meant that it was okay, ignoring the fact that the whole argument in the Senate was whether or not someone that was no longer in that definition of those three categories I mentioned earlier, could actually be impeached and put on trial. The Senate answered that and said, “No, we’re throwing this thing out. We’re done.”
Mr. Jekielek: Fascinating. Obviously, there’s a lot of this hunting for other historical precedents to be used here, at the same time.
Mr. Green: And Jan, if I could add right there. If you really want to be impartial when you look at an issue like this, and there are varying perceptions about the constitutionality or debates about the constitutionality, Jefferson and Madison both were very clear in some of their statements. Anytime you have a question about the construction of the Constitution or the phrases, it’s very important to go back to the time when the Constitution was created, or when those phrases were put into the Constitution if it was an amendment, and actually get into the mindset of the people that put it there, rather than what they called squeeze whatever meaning you might want to out of the Constitution, or invent phrases or invent meanings into the Constitution. Instead of doing that, go back and find out what the folks that created the Constitution were thinking and doing.
So, to those that are on the other side that think this is okay—they sometimes use, for instance, that impeachment in 1876 of the former Secretary of War. They mentioned that one in the opening trial as well. Instead of looking at one in 1876 that doesn’t involve any of the founders—if you have an example to go back to and look at with the Founding Fathers, that’s how you get that spirit manifested in the debates of the Constitution.
Going back and being an originalist is very important, because when you have a debate over what the Constitution says, you need to know what the people that actually put the Constitution in place were thinking and saying.
That’s why I emphasize the 1799 case, and not the 1876 case, because there’s a big difference in time there. No signers of the Constitution were alive at that time. Regardless of what they actually did, if the Senate got it wrong in 1876, we don’t just keep getting it wrong. Congress has done things that are unconstitutional. It doesn’t mean that we want to keep doing things that are unconstitutional. So that’s why I raised that old 1799 example, and I think that’s what we should be looking at.
Mr. Jekielek: Briefly what happened in the 1876 case, exactly? Of course, it was referenced.
Mr. Green: They did go forward with a Senate trial; they did not choose not to make a decision. They did acquit, so the guy was not actually convicted. But it wasn’t based on the idea that the Senate believed it could no longer have a Senate trial of someone that was no longer in those three categories. That was the argument of the impeachment managers “Hey, they did a trial. They voted on whether he was going to be convicted or acquitted.” Therefore, they settled the question of whether or not the Senate can try someone that’s no longer in office. That’s the argument of the Democratic impeachment managers.
What I’m saying and what I’ve heard most legal scholars say on the other side is, just because they got it wrong in 1876 doesn’t mean we keep getting it wrong. We should look back to the actual Constitution and to the 1799 trial and the answer of the Senate then. Jan, when you and I were together a month or two ago, we were talking about the 12th Amendment and interpretation of who can do what. And can you object to electors? And the different sides out there that debate these things. This is a little bit similar to that; there are a lot of legal scholars on both sides.
So every citizen should actually take the time to look at the language in the constitution themselves. I think when you look at the actual language, it’s not ambiguous. I think it’s unambiguous. I think it’s very, very clear when we’re dealing with someone that is not in those three categories, the immediate power does not exist.
Mr. Jekielek: Just out of curiosity, in this 1876 case, was that two-thirds required, or a simple majority required to convict?
Mr. Green: Yes, two-thirds to convict. By the way, I’ll add that he resigned right before the impeachment, and that’s part of why they went forward. They thought, “He’s just trying to get away with his crimes, and we still want to move forward and have a show trial, essentially. We want to have something that’s public where we can embarrass him and where we can say that what he did was wrong, and we don’t want other people to do the same thing.” There’s merit to some of those arguments.
But remember, there’s also a closer precedent, and that is that when the House wanted to impeach Richard Nixon, and then he resigned, they might have had the votes in the House and the Senate to get not only an impeachment, but also a conviction over in the Senate. But once he resigned and he was no longer an officer, it was dropped, because they understood this idea of not impeaching someone that’s no longer in office. You can’t remove someone that is no longer in office.
Mr. Jekielek: Rick, so what’s going to happen next here?
Mr. Green: Well, I don’t have that crystal ball I wish I had. No telling. It is obvious that they will not be able to get to two-thirds. I don’t think any of the arguments that are being made by the impeachment managers are going to move enough votes. As I mentioned earlier, they did change one vote and again, based on painting, a picture worthy of an Academy Award. The facts didn’t change, the Constitution didn’t change.
The fact is a Senator changed his vote based on a better argument being made by the impeachment managers than the defense team, and not based on whether or not the Constitution had changed is a sad commentary on the Senator, not a sad commentary on the Constitution, All of that said, I don’t think there’s any way they get to 67 and have an actual conviction that’s a constitutional conviction.
But like I said before, I think we’re going to see some really creative lawmaking by the Senate, because that’s what they’re doing here. They’re creating. They’re making law here. They’re creating a precedent that can be used in the future. That’s what people should be watching for is not the 67 vote conviction, but potentially a 51 vote resolution from the House and Senate that would still prevent Donald Trump from running for office.
Mr. Jekielek: Any final thoughts before we finish up?
Mr. Green: Well, as folks watch this happen and they realize this is definitely a lot of political theater, they may think there’s nothing I can do about this. This is a big federal government over in Washington, DC. What a great opportunity to say, “Wait a minute, that’s my government, and that’s my Constitution.” It’s a great opportunity for us to learn what the rulebook is that we live by. I’ve said this throughout this whole process, that what they’re doing in pulling together different parts of the Constitution and creating these new rules is more worthy of a banana republic than a constitutional republic.
There’s a reason we’re a constitutional republic. We want the rules in writing; we want the stability of knowing that those rules don’t change unless we amend the rulebook. We as citizens have to know that rulebook. So I would challenge all citizens to take the time to simply read through the Constitution.
As all of this talk is happening in Washington DC, and we hear these phrases being thrown out from the Constitution, just take the time to read through it. It’s not that long. It’s our founding document. It’s the rulebook by which our nation is supposed to exist. If “we the people,” at the beginning of that document, if we don’t know the document, we certainly can’t expect our leaders to rule by that document. It starts with us.
Mr. Jekielek: That’s really sound advice, Rick, and so great to have you on.
Mr. Green: Jan, thank you for having me.
This interview has been edited for clarity and brevity.