President Trump’s term will end before the Senate has a chance to consider the House’s impeachment articles, although it is still working on how to try him and possibly ban him from holding an elective office again. This is raising questions about whether he could even be tried for impeachment, since he will have already moved out of the White House – and whether he would still enjoy the benefits granted to former presidents if the Senate condemns him.
Senate majority leader Mitch McConnell does not plan to reunite the Senate to carry out Trump’s trial before his term ends on January 20; this would only occur after Joe Biden took over the presidency, creating what some jurists consider a gray legal area.
“I don’t think the founders ever thought of this scenario where you would have a president engaged in impugnable conduct towards the end of his term to be removed as president while on trial,” said Stephen Vladeck, a specialist constitutional law and school teacher. of Law at the University of Texas.
Can the president be removed after leaving office?
Lawyers have been discussing whether it is constitutional to try a former president on impeachment.
In a Washington Post article, former conservative US Court of Appeals judge J. Michael Luttig says no, saying the constitution only allows the Senate to sentence an incumbent president.
“Once Trump’s term ends on January 20, Congress loses its constitutional authority to continue the impeachment process against him – even though the House has already passed impeachment articles,” Luttig wrote this week.
But Vladeck says that another section of the Constitution – Article I, Section 3, Clause 7 – poses two questions before the Senate when it says: “The trial in impeachment cases will not extend beyond removal from office and disqualification to hold and enjoy any office. of honor, trust or profit in the United States. ”
“The constitution provides that the Senate can do two different things when an officer is impeached. It can remove him from office, but it can also disqualify him from future office,” he told CBS News. “The termination of President Trump’s term makes one of them debatable, but not both.”
In Vladeck’s opinion, the removal from office and the term of office are separate and independent of each other. He argued in a New York Times article that an employee cannot evade the measure to disqualify him from a future position by simply resigning – as War Secretary William Belknap did in 1876, knowing he was about to be accused of the house. . The Senate – although it voted for his acquittal – first passed a resolution stating that it had the authority to try him, regardless of his resignation.
The Senate also traditionally set aside a vote to convict an officer on charges of impeachment from a vote to prevent him from holding a future position. Eight people were convicted on charges of impeachment, but only three were disqualified from future positions.
If the Senate finally condemns Trump for the impeachment article sent by the House, a second vote may be needed to prevent him from holding a future position. While the first vote would require two-thirds of senators – 67 – to convict and dismiss him, the second vote to prevent him from public office would require only a simple majority, because the Constitution does not require an upper limit.
Will Trump receive his annual allowance, office space, personnel and travel funds if convicted?
Although the House voted to impeach Trump for the second time, he will not automatically lose the benefits enjoyed by former presidents.
“A destitute president who is not condemned by the Senate does not lose any benefit,” said American University presidential historian Allan Lichtman.
The Ex-Presidents Act, passed in 1958, gives all living ex-presidents the right to these benefits:
- A lifetime federal pension equal to the payment received by the head of an executive department (in 2020, that amount was $ 219,200);
- Funds to acquire and furnish offices;
- $ 150,000 per year to hire employees during the first 30 months after the presidency and $ 96,000 per year thereafter;
- Up to $ 1 million per year for “travel and security related expenses” (plus an additional $ 500,000 for a former first lady).
The law also establishes three criteria that define what it means to be a qualified former president for these benefits:
- Who should have served as President of the United States of America;
- Whose service in that position has ended, except for dismissal in accordance with Section II of Article II of the Constitution of the United States of America; and
- Who does not currently hold this position.
It was written specifically to disqualify a president who was impeached by the House and was convicted by the Senate. Former President Nixon received his benefits because he resigned before an impeachment and removal could occur.
What happens if a president is convicted after leaving office?
“There is now no scenario in which Trump’s service will end by the Senate,” said Vladeck. “Even if the Senate finally votes to condemn, I really think Trump will have a good argument that, at least based on the text of the statute, he is still a qualified former president, and that would settle the issue.”
Lichtman drew the same conclusion from a narrow reading of the statute, although he said that it was probably not the intention of Congress when he drafted the law.
“I don’t think they considered a situation like this, in which the impeachment of the Chamber would arrive so late that a trial could take place after the president’s inauguration, either because he was defeated or retired. But I certainly think the intent of the law was that if you are guilty of serious crimes and misdemeanors, you don’t deserve the benefits, “he said.
This creates a gray legal area between the way the law is drafted and what Congress wants. But Vladeck said the only way for the matter to end in court is for the General Services Administration to refuse to treat President Trump as a former president and Mr. Trump to sue them in return.
“I just don’t see it happening,” he said. “Even if Trump is convicted, I assume that the GSA will treat him as a former president based on this particular reading of the bylaws.”
What about protecting the secret service?
In 1994, the federal law that provided Secret Service lifetime protection to former presidents and their spouses was amended to limit that protection to 10 years for any president who took office after January 1, 1997. In 2012, Congress passed a law called Ex-Presidents Protection law, which restored lifelong protection. President Obama, who along with his predecessor, President George W. Bush, would lose coverage while still alive – signed the bill into effect in early 2013.
The statute that governs the protection of the Secret Service only authorizes the agency to protect “ex-presidents”, but does not explicitly define a former president in the same way that the Ex-Presidents Act does. Condemnation or not for post-presidential impeachment, it probably means that Mr. Trump will maintain his protective detachment.
Will he receive a presidential library?
The Former Presidents Act does not provide funds for presidential libraries; those are created with private donations. If Mr. Trump wants to raise money for a library, he can.
Even if you don’t build one, the United States Archivist is legally allowed to purchase land and facilities to create an archive of your presidency.
What if Congress changes the law for ex-presidents?
Congress may decide to amend the Former Presidents Act to specify that a convicted president after the end of his term is not considered a former president and therefore is not entitled to the pension, staff, work space and travel benefits that are included.
But if the law was only passed after a Senate trial in which Trump was convicted, Vladeck said Trump could argue that the law could not be constitutionally applied to him because it did not exist when the Senate considered his case.
Steven Portnoy and Arden Farhi contributed to this article.