The Impeachment Trials of William W. Belknap and Donald J. Trump (updated 2/9/2021)
Today, the Senate voted 56–44 to table a motion to declare the impeachment trial of President Trump as unconstitutional. This vote echoes one taken nearly a century and a half ago during the impeachment trial of former Secretary of State William Belknap. In both, a majority affirmed that the body could try former officials for crimes committed in office. While the case for jurisdiction is stronger for Trump impeached while in office, than for Belknap impeached after resignation, the vote last week was closer and more partisan. A simple majority is not enough to convict Trump. In 1876, the jurisdictional vote previewed a failure to achieve the requisite two-thirds to convict Belknap. A quick study of the Belknap case demonstrates both why Trump’s trial will likely take the same course and proves that course is not inevitable.
On March 3, 1876, a visibly distraught Secretary of War William Belknap presented President Grant with his resignation. A Democratic House Committee had drafted articles to impeach the Republican Belknap for taking bribes connected to his awarding of lucrative government contracts. After the news arrived on Capitol Hill, the committee passed the articles anyway. That afternoon, a House infuriated by his attempt to thwart them by resigning voted unanimously to impeach the now-private citizen.
The presentation of the articles in the Senate presented the upper-house with the open question of whether it could try a former official impeached after his resignation? Belknap’s lead counsel, former President Pro Tempore Matthew Carpenter, challenged the chamber’s constitutional jurisdiction to hear the case.
The pro-jurisdiction camp had the better of the legal arguments. Former officials were impeachable in the British system and under early state constitutions. James Madison believed former official impeachment trials constitutional. And as one Democrat declared: “To say the consent of an offender to impeachment and removal and disqualification is necessary to jurisdiction, is to declare that the Senate of the United States, sitting as a court of impeachment, is the only court in Christendom whose jurisdiction, in a criminal case, depends on the volition of the accused.”
The answer was shaped as much by political calculation as legal scholarship. It was a presidential election year; in the South, white Democrats waged a campaign of racial terrorism to disenfranchise black voters. House Democrats sought impeachment to draw attention to Republican corruption. But unlike the House, the Senate was controlled by Republicans. Many Republicans wished for a speedy conclusion, but some also saw an opportunity for Republicans to take a stand against corruption.
Thirty-seven senators voted for jurisdiction; 28 voted against. All but two Democrats voted to proceed with the trial. The Republicans were more divided: 25 rejected jurisdiction, but 13 voted to let the trial of their co-partisan proceed.
The trial proceeded. Carpenter instructed his former colleagues that a conviction could only be for violations of criminal statutes, drilled down on the elements of the federal bribery statute, and argued for Belknap’s actual innocence on all five counts.
On August 1, the majority of the Senate voted to convict Belknap, but they were five votes shy of the requisite two-thirds. The Democratic vote to convict was nearly unanimous. Only the two Democrats who voted against jurisdiction failed to vote to convict: Eaton of Connecticut voted not guilty for lack of jurisdiction and Jones of Florida abstained from the vote stating his belief.
Twenty-four Republicans voted “not guilty.” Twenty-two declared their votes solely based on the lack of jurisdiction. Two believed Belknap innocent. John Patterson of South Carolina, who voted against jurisdiction, expressed reasonable doubt. George Wright from Belknap’s home state of Iowa voted not guilty and for jurisdiction. Wright cited the elements of the federal bribery statute and his doubt that Belknap violated them.
Fourteen Republicans voted to convict. Most had voted for jurisdiction, but three had voted against. These three (and Edwin Booth of California, a former Republican elected as an Anti-Monopolist) explained their anti-jurisdiction, pro-conviction was consistent with their belief that the jurisdictional vote had conclusively decided that issue. Oliver Morton of Indiana, leader of the Senate’s administration loyalists, felt strongly enough about this stance that even after missing votes on the first four counts due to injuries sustained in a fall that day, he returned to the floor for fifth and to provide his rationale.
As most of Belknap’s co-partisans did in 1876, Trump’s co-partisans who voted against jurisdiction (and maybe Senator Cassidy) will probably vote to acquit the former president, but as the Belknap trial shows this is not their only option.
Note: This post is a quick write-up of research conducted (and then abandoned) last spring. The author plans to post a more thorough comment next weekend, but if he doesn’t you should reach out and remind him.
