The impeachment defense brief of former president Donald Trump mostly consists of three elements: the purported unconstitutionality of trying the president once he is out of office, his supposed First Amendment rights and his denial that he incited the attack on the Capitol.
But there is something new in the brief.
The astonishing assertion that if the Senate tries Trump, it will have violated the constitutional rule against bills of attainder.
What’s a bill of attainder? Funny you should ask!
A bill of attainder, prohibited explicitly by the Constitution in Article 1, Section 9, is a law that singles out a particular individual or class of people for punishment without trial. The category has been analyzed and defined by the Supreme Court through the years, starting in the aftermath of the Civil War and most recently in a 1977 case involving Richard Nixon’s papers.
It’s got nothing to do with the situation faced by Trump in his Senate trial.
To start with, a bill of attainder is, as its name suggests, a bill — the kind of legislative act that only has effect when it is adopted by both houses of Congress and signed into law by the president. Impeachment and removal, by contrast, can be accomplished by Congress alone. So it’s legally wrong for Trump’s lawyers to say conviction by the Senate counts as a bill of attainder. The Senate isn’t voting on any such bill; it’s trying Trump. And President Joe Biden has no role whatsoever in the process.
The distinction between impeachment and a bill of attainder is deeply rooted in historical tradition. One of the reasons impeachment became a distinctive tool in England for parliaments to constrain the power of the monarch is that it could be accomplished without his consent — unlike a bill of attainder, which required royal acquiescence. In other words, we have impeachment as a constitutional tool precisely because the framers wanted a mechanism for constraining the executive.
The framers liked impeachments and provided for them in the Constitution. They hated bills of attainder and banned them in the Constitution. What Trump is undergoing is impeachment.
The next thing to know about a bill of attainder is that it imposes some specific punishment on the targeted person or persons. Trump can’t be removed from office, so the only potential punishment facing him is a bar on running for office in the future.
If Congress tried to ban Trump from future office merely by passing an ordinary law to that effect, to be signed by the president, maybe that could be considered a bill of attainder. His current trial, however, requires conviction by a two-thirds majority for high crimes and misdemeanors before Congress can even consider any punishment in a separate vote. That’s another reason to conclude that there is no constitutional bill of attainder at play here.
Trump’s lawyers’ argument seems to be that since Trump is now a private citizen, and no longer the president, any effort to place him on trial would count as a bill of attainder. That’s clearly not consistent with how the framers’ generation thought about impeachment. As Michigan professor Brian Kalt has shown, several state constitutions provided for impeachment trials that would take place after the relevant government official was no longer in office.
The takeaway is that the bill of attainder argument in Trump’s defense is a classic red herring. It’s an attempt to distract from the case against Trump by invoking legal-sounding constitutional language that no specialist has ever contemplated for more than a moment or two.
Feel free to ignore it in the days ahead.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.
