Professor Jonathan Turley of George Washington University will meet Senate Republicans on Tuesday at his personal lunch to discuss the constitutionality of former President Donald Trump’s impending impeachment trial.
Turley argued that the impeachment trial is unconstitutional because Trump is no longer the president. He was invited by the leadership of the Republican Party in the Senate, and Senate minority leader Mitch McConnell, R-Ky., Plans to discuss the constitutionality issue over lunch.
The fact that the constitutionality of a trial is discussed among Republicans – and that a defender against its constitutionality will be invited to lunch – signals that Senate Republicans may be distancing themselves from the prospect of condemning Trump and barring him from office, something that many flirted with following the attack on the Capitol.
“In appearance, the planned impeachment trial is at odds with the language of the constitution, which expressly states that the removal of a president is the main purpose of such a trial,” Turley said in a recent article for Fox News. “At the time, Trump will not be president or in office. He will be a citizen and would be better served legally to waive the trial entirely as extra-constitutional and invalid.”

Senate minority leader Mitch McConnell of Ky. Walks to speak at the Senate plenary at the Capitol in Washington, Monday, January 25, 2021. (AP Photo / Susan Walsh)
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“There are good faith arguments for the constitutional authority to judge such acts and impose the future disqualification from federal offices,” continued Turley. “However, according to this theory, any previous president could be prevented from running again due to the change in the balance of Congress. Thus, impeachments can even be used to get old results or to get favors from some voters.”
Trump, the professor said, could then challenge any attempt to prevent him from taking office in the future, claiming that the Senate had no authority to conduct the trial.
Many Republican senators have adopted this argument. Senate majority leader Chuck Schumer, DN.Y., responded to this in comments from the floor last week.
“Now, I heard some of my Republican colleagues argue that this trial would be unconstitutional because Donald Trump is no longer in office, an argument that has been totally repudiated, debunked by left, right and center constitutional scholars, and defies basic common sense, ” he said. “It makes no sense that a president – or any authority – can commit a heinous crime against our country and then be allowed to step down to avoid accountability and a vote to remove them from a future position. It makes no sense.”
Schumer added: “In spite of everything, the suppliers of this unusual argument are just trying to postpone the inevitable. … Make no mistake: there will be a trial and when that trial is over, senators will have to decide whether they believe Donald John Trump has incited him to insurrection against the United States. “

House Speaker Nancy Pelosi of California signs the impeachment article against President Donald Trump in an acquittal ceremony before the Senate transmission to the Capitol in Washington on Wednesday, January 13, 2021. ( AP Photo / Alex Brandon)
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In fact, it is almost certain that, regardless of the Senate Republicans’ objections to the legitimacy of the trial, no court would intervene to tell the Senate how to administer it. Schumer, with 50 Democrats and probably some Republicans – if not Vice President Kamala Harris to break party ties – will most likely be able to force a trial.
But the constitutional argument that the trial is illegitimate may provide a convenient excuse for Senate Republicans to vote against Trump’s condemnation, while keeping a distance from his post-election conduct.
Trump has many followers in the Republican Party and a vote to condemn him for a Republican would likely provoke a significant reaction – and perhaps a major challenge for those running for re-election in 2022.
House Democrats handed the impeachment article against Trump to the Senate on Monday night, officially starting his trial. But, because of an agreement between Schumer and McConnell, both Trump and House managers will send out a few rounds of pre-trial summaries before the case starts for real during the second week of February.
Trump’s impeachment for allegedly inciting an insurrection came after he made false claims for months that he won the presidential election. He then gathered thousands of his supporters for a rally he said was “wild” in Washington, DC, on January 6, when Congress and Vice President Mike Pence certified Biden’s victory in the elections in a joint session. Trump repeated his false claims while other allies who took the stage used strident rhetoric.

President Donald Trump speaks during a campaign rally at The Villages Polo Club, Friday, October 23, 2020, in The Villages, Florida (AP Photo / Evan Vucci)
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Shortly thereafter, a pro-Trump crowd stormed and looted the Capitol, forcing Pence and hundreds of lawmakers to hide.
Trump has never explicitly called for violence, but has come under harsh criticism from both the right and the left for allegedly not doing enough to stop the crowd.
Even those who did not support Trump’s impeachment in the House, such as minority leader Kevin McCarthy, R-Calif., Said Trump had some responsibility for what happened. McCarthy later responded to that comment at a news conference.
McConnell left the door open to vote to condemn Trump, and if he does, he will likely bring some Senate Republicans with him. But as more Republicans oppose Trump’s condemnation – or, alternatively, the legitimacy of the trial itself – it seems less likely that 17 Republicans will join 50 Democrats to reach the two-thirds limit needed to condemn impeachment attempts.
And if Trump is not convicted, the Senate cannot hold a vote to prevent him from taking office in the future.