Is It Constitutional to Impeach & Try President Trump Even Though He's No Longer In Office?

UPDATE 2/9/21 (2:15pm EST)

• The Senate voted 56-44 to find that former President Donald Trump is subject to the jurisdiction of the impeachment court for acts committed while in office.
• The only senator who changed their vote relative to the vote two weeks ago was Sen. Bill Cassidy (R-LA), who previously voted against the constitutionality of impeaching a former president. He joined the five Republicans who voted in favor of the trial last time: Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK), Mitt Romney (R-UT), Ben Sasse (R-NE), and Pat Toomey (R-PA).
• The trial will reconvene at 12pm Eastern on Wednesday for the beginning of up to 32 hours of presentations equally divided between the impeachment managers and Trump's defense team.

What’s the story?

• The Senate has begun the second impeachment trial of former President Donald Trump, and Tuesday’s proceedings will be focused on the question of whether it is constitutional to impeach a former president. 
• It will hear four hours of arguments equally divided between the House impeachment managers and the president’s defense counsel, after which the Senate will vote on the constitutionality of the issue and a simple majority determining whether or not the trial proceeds.
• Two weeks ago, the Senate took a vote on the issue after Sen. Rand Paul (R-KY) raised a constitutional point of order. Senators voted 55-45 in favor of the constitutionality of the impeachment trial, although some of the five Republican senators to vote in favor said they wanted more time to deliberate on the question as they only had several hours of notice before it occurred.

What are the managers & counsel arguing?

• Rep. Joe Neguse (D-CO), one of the House impeachment managers, told the senators (seated as jurors) to agree that the impeachment of former President Trump is constitutional:

“Like every one of you, I was evacuated as this violent mob stormed the Capitol’s gates. What you experienced that day, what we experienced that day, what our country experienced that day, is the Framers’ worst nightmare come to life. Presidents cannot inflame insurrection in their final weeks and then walk away as if nothing happened. Yet that is the rule that President Trump asks you to adopt. I urge you, we urge you, to decline his request, to vindicate the Constitution, to let us try this case.” 

• David Schoen, a member of former President Trump’s defense team, argued that Democrats are abusing the impeachment power for political purposes:

“They’ve made clear in public statements that what they really want to accomplish here in the name of the Constitution is to bar Donald Trump from ever running for political office again, but this is an affront to the Constitution no matter who they target today. It means nothing less than the denial of the right to vote and the independent right for a candidate to run for elective political office guaranteed under the First and Fourteenth Amendments to the United States Constitution under the guise of impeachment as a tool to disenfranchise.”

What is the constitutional debate?

• Because the Constitution doesn’t explicitly allow for the impeachment of a private citizen, the ongoing impeachment proceedings are in a constitutional gray area that has been hotly debated once the timeline of former President Trump’s second impeachment became clear. The Constitution’s relevant language reads as follows:

Article II, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Article I, Section 3: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

• Former Judge Michael Luttig, who served on the federal Fourth Circuit Court of Appeals, contended that the impeachment of a former official is unconstitutional in a Twitter thread:

“The very concept of constitutional impeachment presupposes the impeachment, conviction, and removal from office of a president who is, at the time of his impeachment, incumbent in the Office of President from which he is removed by the impeachment. The text, structure, and evident purposes of the Constitution’s several Impeachment Clauses, all, confirm this understanding.”

• A group of 170 legal scholars from across the ideological spectrum authored a letter arguing that it is constitutional for officials who have left office through the expiration of their term or resignation to face impeachment, a Senate trial, and ― if convicted ― potential debarment from holding future public office. Their letter read in part:

“Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires. But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction.”

Historical Precedents

• There is no past precedent in which a former president was impeached by the House and tried by the Senate. However, there is precedent that supports the ability of Congress to impeach and try a former official, while there are also examples of occasions where Congress has halted impeachment proceedings following a resignation.

Impeachment of a Former Official: 

• In 1876, the House impeached Secretary of War William Belknap, who was accused of getting paid for appointing a specific individual to run a trading post in Indian territory. A House committee found “unquestioned evidence of malfeasance” which was advanced to the House, at which point Belknap resigned. Despite his resignation, the House unanimously impeached Belknap.
• At the outset of the Senate trial, Belknap’s counsel asserted that his impeachment was unconstitutional because he was no longer in office and was a private citizen. The Congressional Research Service notes that after three days of debate and more than two weeks of secret deliberations, the Senate voted 37-29 to find that Belknap was “amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.”
• Despite a majority of senators ultimately voting in favor of Belknap’s conviction, he was acquitted because the Senate lacked the two-thirds majority necessary for conviction, with numerous senators who voted for acquittal indicating they did so because they believed the Senate didn’t have jurisdiction over a private citizen.

Impeachment Dropped:

• The resignation of President Richard Nixon occurred in 1974 less than two weeks after the House Judiciary Committee voted to advance articles of impeachment against him. Although the House hadn’t begun consideration of the articles of impeachment on the floor, key Republican senators informed him that the Senate had the votes to convict and remove him from office. Following Nixon’s resignation, the House did not move to consider the articles of impeachment.
• The CRS notes that after the House impeached Judge Samuel Kent in 2009, he resigned and the Senate dismissed the trial. Then-Senate Majority Leader Harry Reid (D-NV) explained that “with the resignation of Judge Kent, the purposes of the House’s prosecution of the Articles of Impeachment against Judge Kent have been achieved… It is agreed that no useful purpose would now be accomplished by proceeding further with the impeachment proceedings.” 
• A similar situation played out after the impeachment of Judge John English, in which the House’s impeachment managers indicated they had no desire to try English after he resigned. That said, the managers clarified that “the resignation of Judge English in no way affects the right of the Senate, sitting as a court of impeachment, to hear and determine said impeachment charges.”

Impeachment & Dismissal:

• In 1797, Sen. William Blount of Tennessee was revealed on July 3rd to have engaged in a conspiracy to help Great Britain seize Spanish-territories in Florida and Louisiana. The Senate called him in for questioning on July 6th and the House voted to impeach him the next day, which made Blount the first person to be impeached. After being informed of Blount’s impeachment, the Senate voted on July 8th to expel him from the chamber and despite an effort to secure his attendance at impeachment proceedings, Blount fled to Tennessee.
• The House approved several articles of impeachment in January 1798 against Blount despite him having been expelled. The Senate attempted to secure Blount’s attendance at the impeachment trial in March and December, but he declined to attend (Blount was serving in the Tennessee State Senate and was the chamber’s speaker). Blount’s counsel argued that he was a former official and not subject to impeachment and the Senate failed to adopt a resolution affirming he was liable to be impeached and tried by the Senate, so it then voted in favor of dismissing the impeachment.

— Eric Revell

(Photo Credit: Trump White House Archived via Flickr / Public Domain)