Senator Lindsey Graham (R-SC) released a letter on Sunday calling on Senate minority leader Chuck Schumer – who will soon be the majority leader – to reject the House’s impeachment article against President Donald Trump, calling the effort an “unconstitutional” act of “Revenge” that will hinder the process of “national cure”.
Graham’s letter represents the Republicans ‘last effort to question the legality and ethics of the Democrats’ plan to hold a Senate impeachment trial for Trump after he leaves office. But Democrats argue that holding Trump accountable for his role in inciting the US Capitol invasion – and potentially preventing him from taking office again – is a critical component in restoring democratic norms and stability in America.
In his letter, Graham asks Schumer to take a vote to reject the House’s impeachment article, which is expected “soon”, according to Rep. Jamie Raskin (D-MD), the main impeachment manager of the Chamber.
Graham argues that the Senate has already fulfilled its duty to defend the election when “virtually all of us” rejected Trump’s calls to reverse the 2020 election results during Congressional certification of Biden’s victory, and that the impeachment will further fuel division . (Seven Republican senators, along with some 138 members of the House, voted against certifying election results.)
“But now, in your first act as a majority leader, instead of starting the national cure that the country so desperately craves, you seek revenge and political retaliation,” Graham wrote in his letter. “While the Senate vice president and Republicans rejected unconstitutional actions, you seek to impose on the Senate what in itself would be yet another unconstitutional action in this shameful saga – the impeachment trial of a former president.”
Graham also contested the Democrats’ right to vote to permanently disqualify Trump from taking office again with Trump out of office during the Senate impeachment trial.
Senator Tom Cotton (R-AR) also questioned whether or not Trump can stand trial in the Senate after he stepped down. “The founders designed the impeachment process as a way to remove public office holders – not an investigation against private citizens,” he said in a statement on Wednesday. “The Constitution presupposes a position from which a removed office holder can be removed.”
But many experts say the constitution does not provide clear guidance on this issue and leaves the possibility of impeachment and prosecution open to government officials even after they leave office.
There are historical examples of employees who were tried after leaving office
Democrats cited previous examples of officials, such as judges, being tried even after leaving office. According to the Wall Street Journal, the US Constitution is silent on the matter, but a report by the Congressional Research Service – Congressional internal research organization – concluded that “although the subject is open for debate, the weight of academic authority agrees that former employees can be accused and tried. “
The CRS report cited the example of War Secretary William Belknap, who was impeached by the House and tried in the Senate in 1876, although he had already resigned after evidence emerged that he acted in a corrupt manner.
Laurence Tribe, a legal scholar at Harvard Law School, recently wrote in the Washington Post that “the clear weight of history, the original understanding and the practice of Congress reinforces the case to conclude that the end of Donald Trump’s presidency would not end his trial in the Senate”.
Tribe wrote that the Constitution’s references to impeachment do not limit the power of impeachment based on whether an officer is in office or not. “Nothing in the Constitution suggests that a president who has shown himself to be a deadly threat to our survival as a constitutional republic should be able to exhaust our ability to condemn his conduct and ensure that it never recurs.” He wrote.
But there is no consensus on this view. Former federal appeals judge J. Michael Luttig argued that the Senate trial would be unconstitutional and says he believes that only the Supreme Court can make a final judgment on the matter.
It is not yet clear when the House will send the impeachment article to the Senate, but when it does, a trial will immediately begin. Condemning an impeached official requires a two-thirds majority vote in the Senate.
As Ian Millhiser of Vox explains, if that happens, then there may be a vote on the sanction – which includes Trump’s disqualification from office again:
If the accused official is convicted, the Senate must decide what sanction to impose on that official. According to the Constitution, “the trial in cases of impeachment will not extend beyond the removal from office and disqualification to exercise and enjoy any office of honor, trust or profit in the United States.” Therefore, the Senate must effectively decide whether merely removing the employee from office is an appropriate sanction, or whether permanent disqualification is justified.
It is unclear how many Senate Republicans would join the Democrats in the vote for sentencing or to prevent Trump from taking office again. But growing tensions between Trump and the Republican government have prompted Senate majority leader Mitch McConnell – who will soon be the minority leader – to consider moving against Trump and condemning him as a way to reduce his influence over the broken.