Impeachment: Can the Senate try an ex-president?

Jan 22, 2021, 4:32 PM | Updated: 4:36 pm


House Speaker Nancy Pelosi of Calif., displays the signed article of impeachment against President Donald Trump in an engrossment ceremony before transmission to the Senate for trial on Capitol Hill, in Washington, Wednesday, Jan. 13, 2021. (AP Photo/Alex Brandon)

(AP Photo/Alex Brandon)

SALT LAKE CITY — While the House has voted to impeach former President Donald Trump, the question arises: Is it constitutional for the Senate to hold an impeachment trial for an ex-president — one who has already left office?

The US Constitution says:

“The president … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

But can he tried in the Senate after he was left office?

The question has never arisen before.

Impeachment of an ex-president is new territory

The only other two presidents to be impeached, Bill Clinton and Andrew Johnson, were tried while still in office.

The House will deliver its article of impeachment against Mr. Trump to the Senate on Monday, launching the start of his second trial there — a historic first. But the start of arguments in the Senate won’t begin until Feb. 9.

However, Senate GOP leader Mitch McConnell seeks to delay the start of a trial for three weeks.

The Senate will hold a trial and needs a two-thirds majority to convict.

Another vote would be necessary to ban Mr. Trump from holding office again, but this vote would only require a simple majority.

“We need to set a precedent that the severest offense ever committed by a president will be met by the severest remedy provided by the Constitution — impeachment and conviction by this chamber, as well as disbarment from future office,” incoming Senate Majority Leader Chuck Schumer, D-NY, said Tuesday, as quoted by the Associated Press.

Unconstitutional, says ex-judge

“Congress loses its constitutional authority to continue impeachment proceedings against” Mr. Trump after he leaves office because “the Senate’s only power under the Constitution is to convict — or not — an incumbent president,” wrote former US Circuit Judge J. Michael Luttig, who served on the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006, in the Washington Post.

“Once Trump’s term [ended] on Jan. 20, Congress [lost] its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment,” Luttig wrote on Jan. 12.

Constitutional, counters senator

Connecticut Democrat Sen. Richard Blumenthal said it was “bogus” that a trial after Mr. Trump has left office wouldn’t be constitutional, noting the Senate has held impeachment trials of federal judges after they’ve resigned.

“So whether somebody resigns or runs out the clock it makes no difference. They can still be held accountable, and there’s nothing in the spirit or the letter of the impeachment provisions in the Constitution that argues against it,” he said, according to the Associated Press.

Historical precedents

Congress impeached Sen. William Blount in 1797 and Secretary of War William Belknap in 1876 after they had resigned from office, according to the Washington Post.

Belknap resigned over allegations of receiving kickbacks. The House impeached him after his resignation, and while Belknap objected to being tried in the Senate because he had left office, the Senate heard three days of arguments on the matter, then deliberated in secret for more than two weeks before concluding Belknap could be tried. He was acquitted, according to the AP.

Most legal scholars and Democrats say the framers of the Constitution didn’t intend to give presidents free rein to violate their oath in the waning weeks of their terms.

A Congressional Research Service report notes that while the Constitution “does not directly address” the issue, most scholars have concluded that Congress does have the authority to impeach and convict a former president.

First impeachment 

The House has now twice impeached Mr. Trump, which voted to impeach him first on December 18, 2019. Mr. Trump is the only president in US history to be impeached twice.

His first impeachment trial in the Senate began Jan. 16, 2020.

That case was based on the pressure Mr. Trump put on Ukraine’s president to dig up dirt on the president’s emerging political rival at the time, former Vice President Joe Biden, who was sworn in as the 46th president on Wednesday.

On Feb. 5, 2020, Utah Republican Sen. Mitt Romney was the only member of the Republican Party to break with the president and his party on the question of whether Mr. Trump deserved to be removed from office and voted to convict during his Senate impeachment trial.

“Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine,” Romney said, according to Politico.

Impeachment 2.0

The House voted Jan. 13 of this year to impeach Mr. Trump for “high crimes and misdemeanors” — specifically for inciting an insurrection Jan. 6 against the federal government at the U.S. Capitol— including the killing of a law enforcement officer. Capitol Police Officer Brian Sicknick died from injuries suffered on-duty.

The House voted 232-197 to impeach Trump, with four GOP abstentions. And 10 Republicans joined with all Democrats to impeach.

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Impeachment: Can the Senate try an ex-president?