No one knows whether the constitution allows the Senate to hold an impeachment trial for former President Donald Trump, now that Trump is no longer in office.
To be sure, there are a bunch of legal studies discussing this issue. And, as a recent report by the non-partisan Congressional Research Service notes, “most academics who have closely examined the issue have concluded that Congress has the authority to extend the impeachment process to officials who are no longer in office.”
But while the constitution mentions impeachment six times, the text of the document provides little clarity as to whether the Senate’s power to try an impeded official ends when that employee leaves office.
The question of whether Trump can still be convicted by the Senate matters because the constitution allows a disenfranchised employee to be permanently disqualified from office. So if Trump can face an impeachment trial, the Senate can ban him from running for president again in 2024 – or in any subsequent election.
And while the weight of the stock exchange suggests that Trump is still vulnerable to impeachment, several Republican senators have already clung to the minority position – the view that former employees are immune from impeachment – as a reason to vote against the conviction. As Senator Joni Ernst (R-IA) said of the impeachment just before Trump stepped down, “my general question is: why are we doing this when the president is absent tomorrow?”
She added that she did not “think” that it would be constitutional to try Trump after he left office.
Trump’s fate, in other words, may depend on the answers to two questions: whether Trump is still vulnerable to an impeachment process and whether a sufficient number of senators say he is now immune from that process to avoid his conviction.
So, is it constitutional to condemn Trump or not?
J. Michael Luttig, a former conservative federal judge, recently raised the constitutional case against the conviction of former Washington Post officials.
The purpose of the impeachment power, says Judge Luttig, is “to remove a president or other ‘civil servant’ from office before he can further harm the nation from the position it then holds.” Thus, once an officer is no longer in office, the case against him becomes debatable – a citizen cannot “further harm the nation” using the powers of a federal office holder.
To support this argument, Luttig points to two constitutional provisions. One establishes that the President “will be removed from office for impeachment for, and conviction for, treason, bribery or other serious crimes and misdemeanors”, and another states that “the trial in cases of impeachment will not extend beyond the removal of office, and disqualification to hold and enjoy any position. ”
However, while the first of these provisions says that the president can be removed from office through impeachment, and the second limits the consequences of being convicted by the Senate, neither explicitly states that a former employee may or may not be convicted by the Senate . And, as noted above, Luttig’s view is the minority position among jurists.
Luttig suggests that the only purpose of impeachment is to remove an officer before he can use his position to do more damage. But the text of the second constitutional provision cited by Luttig suggests that impeachment may serve another purpose – to prevent a former employee from regaining power and causing future damage.
As scholars Edwin Brown Firmage and R. Collin Mangrum wrote in a 1974 legal review article, “the impeachment decision can extend to both the removal from office and the disqualification from any other position”. But, if the employee leaves his current position, it “fulfills only the first objective”.
A closely related problem is that if former employees are immune to the power of impeachment, someone may step down just before the Senate votes to disqualify them. As law professor Brian C. Kalt wrote in a 2001 article, when strategically timing his resignation, an impeached official “can scorn any attempt to disqualify Congress.”
And there is also a strong historical argument that supports the impeachment of former employees. The power of American impeachment, Harvard law professor Laurence Tribe wrote in an opinion piece responding to Luttig, “derives from the power of the British Parliament”. And the British Parliament had the power to accuse former officials.
In fact, while the authors were in Philadelphia drafting the constitution, Parliament was actively involved in the impeachment process against Warren Hastings, a former governor-general of India who stepped down two years before his impeachment. “Hastings’ impeachment,” notes Tribe, “was repeatedly referenced during the Constitutional Convention in Philadelphia.”
Therefore, the weight of academic evidence strongly points in favor of allowing the Senate to proceed against Trump. That said, the only clear American precedent for impeachment proceedings against a former officer cuts both directions.
There is no clear American precedent for regulating whether a former employee can be disqualified from office
There is at least one historical example in which Congress impeached, but did not condemn, a former official. In 1876, the Chamber approved, without objection, articles of impeachment against former War Secretary William Belknap – Belknap was accused of receiving bribes. Significantly, Belknap resigned while the House was still considering whether to challenge him.
During the Senate Belknap trial, senators decided to resolve the question of whether a former employee is vulnerable to impeachment before actually voting on Belknap’s conviction, and the Senate voted 37 to 29 that former secretary Belknap was “ subject to trial for impeachment for acts made as Secretary of War, despite his resignation from that position before being charged. “
It is worth noting, however, that this 37 to 29 vote was below the two-thirds absolute majority requirement needed to actually convict Belknap, and when the Senate voted to convict, a critical block of senators who believed his impeachment was unconstitutional agreed with that position. Although the majority of the Senate voted to condemn the former secretary, no impeachment article exceeded the two-thirds limit, and several senators who voted for absolution signaled that they did so because they believed that former employees were immune from impeachment.
The Belknap precedent, in other words, provides food for both sides of the debate over whether Trump remains vulnerable to impeachment. Proponents of Trump’s impeachment may point to the fact that the Senate majority voted to allow impeachment proceedings 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 illegal.
The Senate can probably do whatever it wants in Trump’s second impeachment trial
In 1989, Congress impeached and sentenced Judge Walter Nixon on two counts of giving false testimony to a grand jury (although Judge Nixon shares the same surname as another figure who plays an important role in the history of impeachment, this is just a coincidence. ). Although the entire Senate voted on Nixon’s conviction, the Senate appointed a committee of senators to “receive evidence and testify” at Nixon’s impeachment trial. Nixon filed a lawsuit, claiming that, by excluding some senators from some parts of his trial, the full Senate violated its constitutional obligation to “try all impeachments”.
Instead of resolving the question of whether the Senate acted constitutionally when it tried and convicted Nixon, however, the Supreme Court found that the judiciary had nothing to do with this issue in the first place. The Constitution establishes that the Chamber has the “only power” to impeach an employee, and that the Senate has the “only power to try all impeachments”. As the Supreme Court explained in Nixon v. U.S (1993), “the common sense of the word ‘unique’ is that only the Senate will have the authority to determine whether an individual should be acquitted or convicted.”
It is not clear whether the current Supreme Court, which is much more conservative and much less inclined to give in to the elected branches than the panel of judges that ruled the Nixon case, would extend NixonTrump’s reasoning for the second impeachment (although it is notable that Judge Clarence Thomas, the most conservative member of the current Court, and the only member of the current Court who heard the Nixon case, joined the majority opinion in Nixon) But the implications of Nixon for Trump’s second impeachment are pretty obvious.
If “only the Senate will have the authority to determine whether an individual should be acquitted or convicted,” this strongly suggests that the Senate has the final say on whether a former elected official remains vulnerable to the power of impeachment. If the Senate decides to condemn Trump and disqualify him from office, the courts must postpone the trial under Nixon.
Significantly, the Court’s opinion on Nixon it does not mean that legal arguments about whether Trump is vulnerable to impeachment or not are irrelevant. It simply means that it is up to each senator to decide for himself whether the constitution allows Trump to be convicted and that the courts should not question these decisions.
It also means that even if a large block of senators argue in bad faith – and for purely partisan reasons – that condemning Trump is unconstitutional, the courts are powerless to reject that conclusion in bad faith.