Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. Read more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
Impeachment of President Donald Trump is necessary but not enough. Conviction, too, is amply warranted but still insufficient. Congress must take that final step and use its rarely invoked constitutional power to disqualify Trump from ever again holding federal office.
If ever a case cried out for application of the disqualification power, this is it: the President of the United States inciting a mob that ransacked parts of the Capitol and resulted in five deaths.
The Constitution provides that, upon impeachment in the US House of Representatives (by majority vote) and conviction in the US Senate (by two-thirds vote), an official can be punished with “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Under Senate precedent, disqualification requires a separate vote, after and only if they have voted to convict. And while a two-thirds vote is necessary to convict, the Senate has previously used a lower standard – a simple majority – to disqualify. Over its history, the Senate has convicted and disqualified only three officeholders, including the last person who was impeached before Trump, federal Judge G. Thomas Porteous Jr. in 2010.
The disqualification power, though rarely invoked, is particularly relevant here because of the calendar. Ordinarily, impeachment and conviction carry a heavy penalty: forfeiture of a president’s remaining term in office. But because Trump’s effort to inflame his followers to storm the Capitol crested on January 6 – exactly two weeks before the end of his tenure – there is little practical chance that the House can impeach and the Senate can hold a trial and convict before the natural end of his term on January 20.
So disqualification likely will be the only real way to impose tangible punishment.
Indeed, the Constitution and historical precedent appear to permit the Senate to try a federal official after he leaves office. This has happened once before. On March 2, 1876, Secretary of War William Belknap resigned under political pressure; later that day, the House impeached him. Then, in August 1876, the Senate held Belknap’s impeachment trial (and ultimately acquitted him).
There undoubtedly is a punitive aspect to disqualification; it is necessary to deter treacherous conduct even in the final days and hours of a president’s term in office. And the looming threat of a post-presidency disqualification vote by the Senate could deter Trump from committing further potential abuses of power – from his authority as commander-in-chief to his exercise of the pardon power.
Further, the disqualification power protects against the eventual return of a president who has so seriously abused his power to warrant impeachment. Typically, impeachment and conviction alone would pose a major obstacle to a politician’s re-election. But Trump is anything but typical. He has shown an uncanny ability to hold onto his base of political support through countless scandals. Trump could well try to ride that support to another run for the presidency in 2024.
Think it’s impractical, that he’d be too old? Consider that Trump in 2024 will be nearly the same age that President-elect Joe Biden is now. And Trump has made clear throughout his career in business and politics that he does not easily accept defeat.
Of course, it’s about even more than preventing Trump from holding office again. The impending impeachment of Trump is also about the history books. It’s vital that Congress condemn Trump’s conduct not just in words but also in action – and impose meaningful punishment to stand as a marker for future generations.
Impeachment and conviction without disqualification ultimately would be toothless, permitting Trump to escape with a wag of the finger but minimal concrete consequences. But disqualification sends an unmistakable message: any president who violates the oath of office as Trump has done will be cast out of office and never permitted to return.
Now your questions
Kara (Tennessee): If the President is impeached, can he lose the benefits that former presidents usually receive?
Yes, but only if impeached and convicted. The federal Former Presidents Act entitles former presidents to an array of benefits including a pension, support staff and Secret Service protection. That law also provides that its benefits are available only to a person “whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America” – referencing the constitutional provision for impeachment, conviction and removal. Thus, on its face, the law would strip a president who has been impeached and convicted of at least some of those benefits (though it is unclear whether he would lose Secret Service protection).
There also could be an argument that if Trump is convicted by the Senate only after he has left office on January 20 – which is possible, as discussed above – he technically was not “removed” from office. But the spirit of the law plainly is to punish former presidents who have been found guilty of high crimes and misdemeanors by stripping away their post-presidency benefits.
Jim (Oregon): Could Texas Sen. Ted Cruz or others who spread falsehoods about election fraud – and thereby contributed to inciting rioters – be punished or even removed from office?
Yes. Article I of the Constitution allows the House and the Senate to expel their own members by votes of two-thirds of membership. Expulsion has rarely been used; no senator has been expelled since the Civil War, and only two representatives have been expelled since 1861 (in 1980 and 2002). The House and Senate also could formally censure – essentially, reprimand – their own members by a majority vote. While censure does not carry any specific penalty, it can have political consequences. For example, the Senate formally censured Sen. Joseph McCarthy in 1954, which damaged his standing in the Senate and in the public eye.
Andreas (Illinois): Does the First Amendment apply to companies like Twitter and Facebook, or do they have the freedom to remove posts and block users as they see fit?
The latter. The First Amendment applies only to governmental action. The very first word of the amendment is “Congress”: “Congress shall make no law … abridging the freedom of speech, or of the press.” That has been applied more broadly to any governmental entity. For example, the First Amendment could apply if Congress passed a law restricting the media, or if a public school board or public library banned certain books.
But the First Amendment does not bind private actors like Twitter or Facebook. There simply is no way for Trump, or anyone else, to legally compel such private entities to allow them to use their platforms.