Nobody knows if the Constitution allows the Senate to hold impeachment proceedings against former President Donald Trump after Trump is no longer in office.
Of course, there are a multitude of legal scholars who have studied this question. And, as a recent report by the bipartisan Congressional Research Service found, "Most scholars who have studied the issue have concluded that Congress has the power to extend impeachment to officials who are no longer in office."
While the constitution mentions impeachment six times, the text of the document offers little clarity as to whether the Senate's power to bring an accused official to justice ends when that official leaves.
The question of whether Trump can still be sentenced by the Senate is important because the Constitution allows a charged civil servant to be permanently disqualified from office. So if Trump faces impeachment proceedings, the Senate could potentially ban him from running for president again in 2024 – or in later elections.
And while the weight of science suggests Trump is still vulnerable to impeachment, several Republican senators have already held onto the minority position – the view that former officials are immune to impeachment – as a reason to vote against a conviction. As Senator Joni Ernst (R-IA) said about the impeachment shortly before Trump took office: "My general question is: why are we doing this if the president is not in office tomorrow?"
She added that she does not "believe" that it would be constitutional to try Trump after he resigns.
In other words, Trump's fate may depend on the answers to two questions: whether Trump is still vulnerable to impeachment, and whether enough senators claim he is now immune to such trials to prevent his conviction.
So is it constitutional to condemn Trump or not?
J. Michael Luttig, a Conservative former federal judge, recently set up the constitutional case against the convictions of former officials in the Washington Post.
Judge Luttig claims that the purpose of impeachment is "to remove a president or other" civil servant "from office before he could do further harm to the nation he then holds." As soon as a civil servant no longer holds his office, the case against him becomes disputed – a private individual cannot “do further harm” to the nation with the powers of a federal civil servant.
To support this argument, Luttig refers to two constitutional provisions. One provides that the president "be removed from office for impeachment and conviction of treason, bribery or other serious crimes and misdemeanors," and another provides that "the sentence in cases of impeachment does not extend beyond impeachment and disqualification to hold and enjoy office. "
While the first of these provisions states that the president can be removed from office by impeachment and the second limits the consequences of a Senate conviction, it does not specifically state that a former official may or may not be convicted by the Senate. And as mentioned above, Luttig's view is the minority position among legal scholars.
Luttig suggests that the only purpose of impeachment is to remove an officer before they can use their office to cause further damage. However, the text of the second constitutional provision quoted by Luttig suggests that the impeachment could serve a different purpose – namely to prevent a former civil servant from regaining power and causing future damage.
As scholars Edwin Brown Firmage and R. Collin Mangrum wrote in a 1974 law review article, "impeachment may include impeachment as well as disqualification for further office." However, if the official leaves his current position, "it only achieves the first objective".
A closely related problem is that if former officials are immune to impeachment, someone could step down just before the Senate vote to disqualify them. As law professor Brian C. Kalt wrote in a 2001 article, an indicted official can "disregard any attempt by Congress to disqualify himself" by strategically timing his resignation.
And there is also a strong historical case for the impeachment of former officials. American impeachment power, writes Harvard law professor Laurence Tribe in a statement to Luttig, "derives from the power of the British Parliament." And the British Parliament had the power to indict former officials.
While the Philadelphia drafters were drafting the constitution, Parliament was actively involved in an impeachment trial against Warren Hastings, a former Governor General of India who stepped down two years prior to his impeachment. "The Hastings impeachment," notes Tribe, "was mentioned repeatedly during the Philadelphia Constitutional Convention."
So the weight of the scientific evidence strongly suggests that the Senate can take action against Trump. That is, the only clear American precedent for impeachment against previous formal cuts in either direction.
There is no clear American precedent governing whether a former civil servant can be expelled from office
There is at least one historical example when Congress indicted but not convicted a former official. In 1876 the house approved impeachment proceedings against former Secretary of War William Belknap without objection – Belknap was accused of accepting bribes. Significantly, Belknap had resigned while the House was still debating whether he should be charged.
During the Senate trial of Belknap, the Senators decided to clarify whether a former civil servant is vulnerable to impeachment before actually voting on Belknap's conviction, and the Senate voted 37-29 for ex-Secretary Belknap to "go through." Impeachment for acts can be brought to justice despite his resignation from office before he was charged as Minister of War. "
It is worth noting, however, that this 37-29 vote was below the two-thirds majority requirement required to actually convict Belknap, and when the Senate voted on the conviction, a critical block of senators that believed his impeachment was unconstitutional, prevented position. Although a majority in the Senate voted to convict the former secretary, no impeachment process passed the two-thirds threshold, and several senators who voted in favor of acquittal signaled this because they believed former officials were immune from impeachment.
In other words, Belknap's precedent provides fodder for both sides of the debate over whether Trump remains vulnerable to impeachment. Proponents of Trump's impeachment can point out that a majority in the Senate has voted to allow the impeachment process to proceed. Meanwhile, opponents of Trump's impeachment may point to Belknap's final acquittal and the fact that a critical minority of Senators believed Belknap's impeachment was unlawful.
The Senate can likely do what it wants in Trump's second impeachment trial
In 1989, Congress indicted and sentenced Judge Walter Nixon on two grounds for making false statements to a grand jury (although Judge Nixon shares the same last name as another person prominent in the history of impeachment, this is just it An accident). . Although the entire Senate voted on whether or not Nixon should be convicted, the Senate appointed a committee of Senators to "obtain evidence and testify" in Nixon's impeachment proceedings. Nixon sued, alleging that by banning some senators from some parts of its trial, the entire Senate had violated its constitutional obligation to "attempt any impeachment."
However, rather than resolving the question of whether the Senate acted constitutionally in convicting and convicting Nixon, the Supreme Court ruled that the judiciary had nothing at all to do with incriminating the issue. The Constitution provides that the House "has sole power" to indict an official and that the Senate "has sole power to attempt any impeachment." As the Supreme Court stated in Nixon v. United States (1993), "the reasonable meaning of the word" alone "is that only the Senate should have jurisdiction to decide whether a person should be acquitted or convicted."
It is far from clear whether today's Supreme Court, which is both far more conservative and far less inclined to oppose the elected branches than the panel of judges that ruled the Nixon case, would extend Nixon's reasoning to Trump's second impeachment (although) It is noteworthy that Judge Clarence Thomas, the most Conservative member of the current Tribunal and the only member of the current Tribunal to hear the Nixon case, has acceded to the majority opinion in Nixon. However, the implications of Nixon on Trump's second impeachment are obvious.
If "only the Senate is supposed to have the power to decide whether to acquit or convict a person," it strongly suggests that the Senate has the final say on whether a former elected official remains vulnerable to impeachment. If the Senate decides to convict Trump and expel him from office, the courts should postpone that verdict under Nixon.
Significantly, the Court's position in the Nixon case does not imply that legal arguments about whether or not Trump is vulnerable to impeachment are irrelevant. It simply means that it is up to each senator to decide for themselves whether the Constitution allows Trump to be condemned, and that the courts should not question those decisions.
And it also means that even if a large block of senators maliciously – and for purely partisan reasons – argues that Trump's conviction is unconstitutional, the courts are unable to override that malicious conclusion.
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