1) President means president. Article II, Section 4 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.” By “president,” the Framers meant the President of the United States. There is only one of them at a time, and now, that is not Donald Trump. In addition, Article II, the article creating the executive branch, uses the word “president” more than a dozen times, and in each of those usages it refers to the person currently serving as president. It is difficult to believe that the Framers intended the word “president” to refer to the current president in every reference to the office in Article II, except in Section 4, when by “president” they meant — but did not specifically say — “president and former president.”

2) Impeachment is for removal. It’s clear from a reading of the Constitution that the Founders included impeachment as a mechanism to remove a top official from office for specific instances of misconduct. Just look at both the Federalist Papers and the records of the 1787 Constitutional Convention. To the degree that they discussed impeachment, it was as a way to remove an official from office. They never discussed impeachment as a way to punish a former official. Democrats point to the passage in the Constitution that 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, they say, means while removal is irrelevant in Trump’s case, the Senate can still, by finding Trump guilty, bar him from ever being holding federal office again. But the fact is, there’s no reason in the text of the Constitution to believe that the Founders intended the Senate to try an ex-president for the purpose of barring him from future office.

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3) There’s no precedent. Some Democrats have pointed to the case of a cabinet secretary who was impeached after resigning in 1869 as precedent for a trial for a former president. First of all, it’s a pretty weak precedent — the cabinet officer was acquitted because a number of senators had concerns about trying a former official. And second, there is this basic fact: This has never been done before with a former President of the United States. Never. Democrats cannot point to a presidential precedent because there isn’t one. On the other hand, there is the precedent of President Richard Nixon, who resigned as the House prepared to impeach him. Nixon’s resignation closed the book on impeachment; Congress dropped its efforts to impeach him. The great post-presidential controversy involving Nixon was President Ford’s pardon, but that simply supported the fact that the Constitution allows criminal prosecution of a president after leaving office, which is why Ford felt it necessary to pardon Nixon. The possibility of prosecution, of course, would apply to Trump, too.

4) It wasn’t discussed when the Constitution was written. As mentioned above, both the authors of the Federalist Papers and the delegates to the Constitutional Convention in Philadelphia discussed impeachment as a means of removing officials for misconduct. But they did not discuss the issue of impeaching and trying a former official. “Neither the debates of the 1787 Philadelphia Convention…nor the records of the 1787-1788 state ratifying conventions…contain any direct discussion of whether impeachment could apply to ex-officials,” write constitutional scholars John Yoo and Robert Delahunty.

5) The Framers rejected it. Still, Democrats point to some pre-Constitution state constitutions, which allowed for the impeachment of former officials, as proof that the Framers intended impeachment to apply to those ex-officials. And it is true that a few early state constitutions specifically provided for the impeachment of former officials. The constitutions of Pennsylvania, Virginia, Delaware, and Vermont, all passed in 1776-1777, all provided for after-office impeachment (although Delaware’s limited impeachment to the 18 months after leaving office). The problem is, a decade later, in 1787, the Framers did not incorporate those provisions in the Constitution. In an email exchange, I asked Yoo what happened. His answer:

The first constitutions, right at the time of the Revolution, were heavily anti-executive. Pennsylvania’s was the worst (it didn’t even have a governor, just a 12-member committee elected to one-year terms). Virginia’s was also very bad, as Jefferson and Mason reacted negatively to their experiences under the British crown. So it was no surprise that they would subject even ex-officers to impeachment, because those states introduced a number of devices to bend the executive to the legislative (the legislatures even picked the governors).

But then, as the Virginia/Jefferson example showed, these constitutions were widely seen as disasters. They had gone too far in limiting the executive and performed poorly during the Revolution. A second burst of constitution-writing led to more balanced executive-legislative powers and a unitary governor. New York and Massachusetts were the models, and they were seen as so successful that they were the models used at the Philadelphia Convention. So it is no surprise that they dropped the idea of post-office impeachment, just as they dropped a number of other tools used to bend the executive to the legislative will. It would be surprising to assume that the Founders at Philadelphia, who saw the radicalism of Pennsylvania and Virginia as failures, and restored many of the elements of the executive power in the presidency, would sub silentio adopt a tool of executive control not explicitly provided for in the text of the Constitution.

Altogether, that is a powerful argument against late impeachment. Now, the strongest argument on the other side. First, Democrats, and some Republicans, have put forward a number of weak arguments in favor of late impeachment. Some say the Constitution doesn’t specifically forbid impeaching a former official. Some say a single example of late impeachment — that cabinet official in 1869 — makes it permissible. Some point to those early state constitutions. Nothing very strong there. But there is one compelling argument for late impeachment. Advocated most clearly by former federal Judge Michael McConnell, it says simply that: a) The Constitution gives the House the “sole power of impeachment”; b) The House impeachment of Trump was legitimate, because he was in office when the House impeached him on January 13; c) the Constitution gives the Senate the “sole power to try all impeachments”; and therefore d) the Senate has the power to try the House’s impeachment of Trump.

It’s a good argument. But the question is, does it outweigh the several good arguments on the other side? First, from all of the above, it seems clear that the Framers intended impeachment to be the mechanism by which Congress could remove a president. (McConnell disagrees with the anti-Trump voices who argue that the House can impeach a former president; his argument in the Trump case depends on the House having impeached Trump while he was still in office.) There is textual and historical evidence for the Framers’ intentions, plus the fact that they specifically provided for the criminal prosecution of presidents once they have left office, which suggests that is how they believed misconduct by a president out of office should be addressed.

But mainly, it comes down to the “sole power” argument versus Article II Section 4. On one hand, the “sole power” text seems clear. On the other hand, the “president…shall be removed” text seems clear. Perhaps the Constitution just conflicts with itself about this, in part because the Framers never foresaw that a future Senate would want to try a former president. Or perhaps the question of late impeachment is simply “close and unsettled,” as one scholar who has studied the issue carefully has said.

The bottom line: Say one accepts that view — that it’s a close call and there’s no clear answer. Why would one support the Senate doing something unprecedented in all of U.S. history when there is no overwhelmingly clear authority to do it?

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