- The Washington Times - Tuesday, February 9, 2021

A high federal official who has recently left office. A Senate vote that he can still be tried on impeachment. A widespread belief that he was guilty.

The Senate has seen this movie before.

Nearly 150 years before Tuesday’s 56-44 vote to proceed with a trial against now-private citizen Donald Trump, senators went down the same path with William Belknap, who had led President Ulysses S. Grant‘s War Department, until he resigned under accusations of bribery.

Senators at the time ruled that even though Belknap was out of office, they still had the power to try and convict him and bar him from future office. And after hearing all the evidence, a majority of senators voted to convict him — but more than a third said they didn’t have the jurisdiction to try him, securing his acquittal on an 35-25 vote.

“The trial, while it has been an expensive proceeding to the government, has established a precedent which will hereafter be regarded as governing in similar cases,” opined the Evening Star, Washington’s premier newspaper.

That standard did hold for 146 years, until Democrats brought articles of impeachment against Mr. Trump, who stands accused of inciting insurrection with his behavior surrounding the deadly Jan. 6 attack on the Capitol.

As Mr. Trump’s Senate trial convened with opening arguments Tuesday, the lessons of the Belknap impeachment loomed large, and signaled this one, too, will end without a conviction.

“The result of this trial is preordained. President Trump will be acquitted,” Sen. Ted Cruz, Texas Republican, said Tuesday.

Democrats say the 1876 case actually works in their favor, since the Senate ended up holding a trial.

Rep. Joe Neguse, one of the House impeachment managers, said the Belknap case, which involved allegations that he accepted massive bribes in exchange for awarding trading post slots at Army forts, is “arguably the most important precedent that this body has” for the Trump trial.

With the House poised to impeach him in March 1876, Belknap rushed to the White House and gave his resignation. The House voted to impeach him anyway — and then spent days writing and approving five articles of impeachment.

Debate in the Senate opened in May, with the question of jurisdiction firmly before the chamber.

Mr. Neguse, Colorado Democrat, said many senators then were “outraged” by the suggestion they didn’t have the power to try a former official.

“The Senate debated this very question for two weeks. The Senate spent an additional two weeks deliberating,” he said. “At the end of those deliberations they decided, decisively, that the Senate has jurisdiction and that it could proceed, that it must proceed, to a full trial.”

That vote was 37-29, similar to Tuesday’s vote in the current Senate.

House Democrats also pointed to the 1876 trial in their impeachment briefs, saying that after deciding it had jurisdiction, the Senate went on to a full trial on “the merits of the case.”

Reporting from the time, though, said the merits of the case had little to do with the acquittal.

Instead, nearly all the 25 senators who voted for acquittal did so because he — the Senate was all male at the time — thought the proceedings were illegal. The New York Times reported only a single senator voted for acquittal based on the evidence; The Baltimore Sun reported two senators; and the Evening Star said it was three.

The New York Times editors were stunned and outraged.

“It will henceforward be practically impossible to convict an officer who, being exposed in crime, resigns before impeachment,” the paper thundered at the time, calling the precedent “absurd in law, ridiculous in reason, and pernicious and dangerous in fact.”

The newspaper also said another precedent was set by the 1876 trial, when, despite the Senate voting that it had jurisdiction, individual senators did not feel bound by that vote.

That is what Republicans expect to play out this week, where the Senate has ruled it has jurisdiction, but enough senators disagreed that they can block any conviction.

“I do think it takes some mental gymnastics to on the one hand ‘I consider this to be an unconstitutional action,’ on the other hand, to consider conviction is part of it,” said Sen. Kevin Cramer, North Dakota Republican.

The debate from 1876 is startlingly similar to what’s played out this year, even including warnings that should this line be crossed and Mr. Trump convicted, it will spark retaliation once the GOP regains control.

There is one major substantive difference between Belknap’s case and that of Mr. Trump: Belknap resigned, while Mr. Trump served out his term.

That could cut both ways, though.

Democrats says the case against Mr. Trump is even stronger since he was in office when the House voted on the article of impeachment. But the former president’s lawyers argue he served out his time and didn’t use resignation as a way to try to escape accountability, as Belknap was accused of doing.

Belknap’s guilt wasn’t in much doubt in 1876. George Armstrong Custer was a key witness against him in congressional testimony, also fingering Grant‘s brother. Weeks later, seeking to reingratiate himself with Grant, Custer would perish in the ill-fated attack on a massive force of Sioux and Cheyenne warriors at Little Bighorn.

Mr. Trump’s lawyers do contest his guilt, arguing it is unfair to blame him for the actions of his supporters.

Sign up for Daily Newsletters

Manage Newsletters

Copyright © 2021 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.


Click to Read More and View Comments

Click to Hide