Several Republicans are arguing that what Democrats are doing is unconstitutional, that a former president cannot be tried. After all, impeachment is the Constitution’s method for removing a president who has been found guilty of of serious misconduct. But Trump can’t be removed. He’s already gone, having served out his term that ended last Wednesday.

Democrats will argue that the Constitution does not specifically say you can’t impeach a former official. They will argue that when Article II of the Constitution says, “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” it does not specifically prohibit the targeting of a former president. They will also argue that when the Constitution says the penalty for impeachment “shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States,” that means that while removal is irrelevant in Trump’s case, the Senate can still, by finding him guilty, bar Trump from ever being president again.

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Again, there is no precedent for doing any of that with a former president. It has never been done. Instead, Democrats will point to a single case, that of a cabinet official, Secretary of War William Belknap, who in 1876 was accused of financial corruption. Minutes before the House was scheduled to vote to impeach him, Belknap resigned, claiming that Congress could not impeach a former official. The House went ahead and impeached him anyway, and the Senate then debated whether Belknap, as a former official, could be tried in a court of impeachment. They eventually voted 37 to 29 that Belknap could, in fact, be tried. (There were 76 seats, one of which was vacant, in the Senate at that time.) Then, after a five-month trial, they failed to convict Belknap on a vote of 37 to 25. The reason Belknap was acquitted — he was clearly guilty of the financial crimes at the heart of the case — was that a sufficient number of senators believed it was unconstitutional to try a former official to prevent the impeachers from reaching the Constitution’s two-thirds standard for conviction.

So that is the precedent Democrats will claim allows them to try former President Trump. But the fact is, there is much more precedent for Congress choosing not to try a former official. The biggest is the case of President Richard Nixon, who resigned ahead of impeachment in 1974. Once Nixon was out of office, the House ended its impeachment proceedings. And then there are judges, who make up most of the impeachments in U.S. history. “On numerous occasions, the target of an impeachment inquiry resigned before the House could take a vote,” wrote Michigan State University law professor Brian Kalt in an extensive 2001 article on late impeachments. “In every one of those cases (except, of course, that of Belknap), the House opted not to proceed.” A footnote in Kalt’s article quoted a 1992 book, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials, by author Eleanore Bushnell, that said, “More than fifty federal judges have resigned while under investigation or after their impeachment had been recommended to the House of Representatives, and further action was not pursued against them.”

So what is stronger precedent, Republicans will ask: A single case — Belknap — or dozens of cases, including one president, in which Congress decided not to pursue impeachment or trial against a former official?

As for the argument that the Constitution does not specifically prohibit the trial of a former president — that when Article II of the Constitution says “The president…shall be removed from office on impeachment…” it didn’t mean just the president in office at the time — the Brian Kalt article quotes an argument from the Belknap trial in which one of Belknap’s attorneys said, “The word ‘president’ appears 14 other times in Article II, and in every single case it is undisputed that it refers to the person serving as president, not to a former president.” That is true. With Trump, the Democratic case will be that in every instance in which the word “president” appears in Article II, it refers to a sitting president except in the impeachment clause, in which it refers to anyone who has served as president. That would conveniently allow what Democrats want to do — try former President Trump — but it’s a pretty unrealistic reading of the Constitution.

There are a lot of lawyers in the Senate. When the Trump trial begins, they will undoubtedly argue these matters. In a text exchange with a Republican senator over the weekend, I asked how they would do it. He made a pretty simple case.

Democrats will argue three points, he said: “1) The Founders didn’t explicitly say in the Constitution that you couldn’t impeach a former official, and the English did it; 2) We want to be able to impeach former officials, both for ‘accountability’ and so they can’t thwart impeachment by resigning; and 3) A majority of the Senate said they had this power in re: Belknap, so they must have this power.”

“Very weak arguments,” the senator concluded, “and none answer what will be most Americans’ commonsense (and correct) take: Why are they trying to convict and remove a guy from office who left office last week?”

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