In a previous commentary, I noted that Utah’s Sen. Mike Lee suffers from constitutional leftopia, an affliction causing near blindness to constitutional issues on the left side of the political spectrum. Judging from the press release explaining his recent Senate vote to dismiss the House’s Impeachment without trial, Lee’s condition has gone downhill.
According to Lee, trying Donald J. Trump would be unconstitutional because “the result would not only be problematic, but also contrary to the most natural reading of the text, structure, and historical understanding of the Constitution.”
Lee is a fervent disciple of the late Justice Antonin Scalia, the patron saint of the constitutional doctrine known as originalism. Scalia’s mantra was start with the text. If the text is clear, look no further. To Scalia, the language of the Constitution trumps other sources of law, including reported court cases and legal scholars in treatises and law journals. As an occasional admirer of Scalia, I could not agree more. (Non-lawyers, bear with me here. No law degree needed to catch my drift).
So, let us go to the Constitution. Article I, Section 3, Clause 7 reads: “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: but the Party convicted shall be subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Put another way, Congress can punish official misconduct through impeachment only by: (1) removal from office, and (2) disqualification from holding any further office. And Congress cannot punish further. It cannot fine, imprison or execute — other legislative punishments from Merrie Old England which the Framers of the Constitution left to the courts.
Perhaps my mind lacks subtlety, but a “natural reading” of this text, albeit more than 200 years old, seems clear to me. Nothing in Clause 7 or the rest of the Constitution prohibits having an impeachment to disqualify a wrongdoer from further office — even if he leaves office without being removed by impeachment.
Lee also states that the current impeachment should not proceed because the result would be “problematic.” Funny, I had not heard that “problematic” is a legal defense. (I do not believe it is).
Nevertheless, I do agree that a guilty verdict would be problematic for Trump and the Republican Party. But that is their “problem.”
However, as the senator raised the subject, there is a possible “problematic” result worth noting from his reading of the Constitution. Allowing seditionists and crooks to skedaddle out of office before an impeachment trial can happen would give such creatures a second chance to slither back into office. I suspect that the Framers really would find that result “problematic” and not “natural.” And it is one more reason why Lee’s explanation of his vote makes no sense.
On the surface, Lee’s reasoning runs contrary to the originalism doctrine to which he subscribes. It must have left Saint Scalia twisting and twirling in his grave. Lee has some explaining to do. (Perhaps he will enlighten us further. But if he tries to do so, history requires him to bring his A game. His sorry press release does not cut it.)
For now, there are only two apparent explanations for the good Senator’s position — either his constitutional leftopia has worsened, or he is trying to duck a vote on the merits of Trump’s guilt to avoid getting caught in a political crossfire.
Because we should believe the best in people, let us believe that Lee’s vote is due to his affliction, and not due to a rather unflattering character flaw.
Lawrence J. Leigh
Lawrence J. Leigh is a former assistant United States attorney for the districts of Utah and Northern California.