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Constitutional Impeachment Is Loss Prevention

Our life, liberty, and property are more secure when unworthy agents are rapidly and summarily disqualified to hold any office. In Trump’s second impeachment, the unworthy agents are all representatives and senators who vote for impeachment, and John Roberts.

James Anthony
February 5, 2021

Impeachment does not mean what people think it means.

Impeachment, including trial, means withdrawing current or future privileges to be delegated power by we the people.

Impeachment is for treason, bribery, or other high crimes or misdemeanors—basically, for proving unworthy of trust as an agent of we the people [1].

Impeachment can proceed while a person is in office or after a person leaves office. The latter English practice was never explicitly ruled out in America, and it’s the only way to fulfill impeachment’s clear scope of preventing future risks to we the people [2].

Impeachment defendants are not due a constitutional criminal or civil process. Impeachment punishments are not deprivations of a defendant’s natural rights but rather are removals of certain of a defendant’s privileges, for cause. In impeachment, the defendant’s life, liberty, and property are not in jeopardy, but we the people’s life, liberty, and property are in jeopardy. We the people are due a constitutional impeachment process.

The House is the grand jury [3]. If it worked like a historical criminal grand jury [4], representatives would act in secret, making charges on their own or approving charges recommended by prosecutors.

The Senate is the trial jury. To protect we the people, senators should consider all possible evidence. Since they are lawmakers, and they act on oath or affirmation specifically for impeachment, they are our best-available trial jurors to exercise sound judgment in weighing impeachment evidence. Senators should decide based on the preponderance of the evidence.

The chief justice is the presiding judge in the impeachment trial of a president [5], current or former.

Judgment does not extend further than to removal from office and disqualification from holding and enjoying any office of honor, trust, or profit under the United States.

There is no power to reprieve or pardon impeachment.

To prevent losses to we the people, impeachment, including trial, must be started and completed summarily as soon as cause is known. Conveniently, the most-blatant unworthiness of trust comes from unconstitutional uses of power that are openly recorded in the public record. Used constitutionally, impeachment in such cases would be remarkably simple, quick, and effective.

The real meaning of impeachment, applied to Trump’s second impeachment, leads to some conclusions that enough people have been getting right, but in part for reasons that are wrong; and to other conclusions that many people have been getting wrong:

  1. The rapidity of the impeachment was exemplary constitutionalism.
  2. The charges were dead wrong.
    Unworthiness of trust as an agent of we the people was not demonstrated by Trump’s disputing the results of the 2020 general election when he spoke with a state election officer and when he spoke publicly; in fact the opposite, worthiness of trust, was demonstrated. Many careful observers dispute the lawfulness of the election process and of the overall results [6]. Trump’s voicing this dispute was responsible safeguarding of the public trust. Silence would not have been.
    Unworthiness of trust was demonstrated by each representative who voted for impeachment on the stated charges [7], which are specious. Voting to disqualify a political opponent for using the powers of his office responsibly was high abuse of power. If impeachment was used property, each representative who voted for this impeachment would as soon as possible be summarily impeached, convicted, and no longer allowed to hold any U.S. office.
  3. Impeachment, including trial, after a person left office would be exemplary constitutionalism.
  4. Either the chief justice presides or an impeachment trial of a president, current or former, is not constitutional.
    For refusing to perform this solemn mandate [8], Chief Justice John Roberts should be summarily impeached, convicted, and no longer allowed to hold any U.S. office.
  5. Rapidity in an impeachment trial would be exemplary constitutionalism.
  6. Not providing criminal due process in the impeachment trial would be exemplary constitutionalism.
  7. Unworthiness of trust would be demonstrated by each senator who votes for impeachment conviction on the stated charges, which are specious. If impeachment was used properly, each senator who votes to convict would as soon as possible be summarily impeached, convicted, and no longer allowed to hold any U.S. office.

Republican senators appear ready to vote appropriately against conviction. But of those who might vote appropriately, every single one is now on record as holding wrongly that former officers can’t be impeached [9].

John Roberts almost certainly won’t be impeached for his Constitution-defiance here. But if he would be, the Democratic side would almost certainly vote to convict for the wrong reason: because Roberts didn’t advance their impeachment of Trump on charges that are dead wrong. Some other Republicans might vote to convict for another wrong reason: because Roberts has violated the Constitution in other actions [10] that the Democratic side would not charge him for. Afterwards, Biden or Harris would never nominate a replacement whose actions as a whole would be even as occasionally constitutional as Roberts’s actions as a whole are [11].

The Constitution limits government using multiple processes. We are very far from using many of its processes constitutionally.

Given the 3/4 supermajority required for amendment ratification, the amendment process is as far as processes get from being used constitutionally.

Given the 2/3 supermajority required for impeachment conviction, the impeachment process is next farthest from being used constitutionally.

The first step towards using the impeachment process constitutionally is to understand that constitutional impeachment is loss prevention.


  1. Rogers, Mabry, and Stephen Young. “Public Office as a Public Trust: A Suggestion that Impeachment for High Crimes and Misdemeanors Implies a Fiduciary Standard.” Georgetown Law Journal, vol. 63, no. 5, May 1975, pp. 1025-50.
  2. Kalt, Brian C. “The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment.” Texas Review of Law & Politics, vol. 6, no 1, Fall 2001, pp. 13-135.
  3. Turley, Jonathan. “Congress as Grand Jury: The Role of the House of Representatives in the Impeachment of an American President.” The George Washington Law Review, vol. 67, no. 3, March 1999, pp. 735-90.
  4. Roots, Roger. “If It’s Not a Runaway, It’s Not a Real Grand Jury.” Creighton Law Review, vol. 33, no. 4, June 2000, pp. 821-42. 
  5. Williams, Michael. “Rehnquist’s Renunciation? The Chief Justice’s Constitutional Duty to ’Preside’ over Impeachment Trials.” West Virginia Law Review, vol. 104, no. 3, Apr. 2002, pp. 457-84. 
  6. Paxton, Ken, et al. “Motion for Leave to File Bill of Complaint; Brief in Support of Motion for Leave to File Bill of Complaint” Texas v. Pennsylvania, 2020. 
  7. United States, Congress, House of Representatives. Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors. 2021. 117th Congress, 1st session, House Resolution 24.
  8. Gerhardt, Michael. “Trial of Impeachment.” The Heritage Guide to the Constitution, edited by Matthew Spalding and David F. Forte, 2nd ed., Regnery Publishing and The Heritage Foundation, 2014. 
  9. Brown, Jon. “‘Dead on Arrival’: 45 Republican Senators Vote to Dismiss Second Trump Impeachment as Unconstitutional.” The Daily Wire, 26 Jan. 2021, www.dailywire.com/news/dead-on-arrival-45-republican-senators-vote-to-dismiss-second-trump-impeachment-as-unconstitutional. Accessed 5 Feb. 2021.
  10. Hoff, John S. “Obamacare: Chief Justice Roberts’s Political Dodge.” The Independent Review, vol. 18, no. 1, Summer 2013, pp. 5-20.
  11. Horowitz, Daniel. “Why Conservatives Must Fight Judicial Supremacism — and Not Hang Their Hopes on John Roberts.” Conservative Review, 13 Sep. 2019, www.theblaze.com/conservative-review/conservatives-must-fight-judicial-supremacism-not-hang-hopes-john-roberts. Accessed 5 Feb. 2021.

James Anthony is the author of The Constitution Needs a Good Party and rConstitution Papers, and has written in The Federalist, American Thinker, and Foundation for Economic Education. Mr. Anthony is a chemical engineer with a master’s in mechanical engineering and a strong background in process design and control.


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