The horrific events at the Capitol on Jan. 6 left House Democrats determined to impeach President Trump quickly, and they did so on Jan. 13 with the help of 10 Republicans, 232-197.
But legal scholars and senators are debating whether the Senate can follow through with the customary impeachment trial and vote on whether to convict Trump since lawmakers won’t even consider the matter until Trump is out of office.
“The Senate does indeed have the power to conduct a Senate impeachment trial after the president leaves office,” Michael Gerhardt, a professor at the University of North Carolina School of Law, told the Washington Examiner. “The Constitution does not place a time limit when a trial must be held, and there are three previous impeachments and trials that were done after officials left office. That’s a strong foundation for the trial to proceed on Jan. 21.”
Many legal scholars and Democrats agree with Gerhardt, but it may not be that simple.
The House impeachment article accuses Trump of inciting an insurrection. The charge stems from the Jan. 6 attack on the Capitol that left five people dead, dozens injured, and the Capitol damaged. Lawmakers claim Trump stirred up a mob of angry supporters at a rally contesting the intent of Congress to certify the results for President-elect Joe Biden, the winner of the Nov. 3 presidential election. A large crowd of Trump supporters stormed the Capitol, overpowering police and taking over the building for hours.
While the Democratic-controlled House was able to call up and pass the impeachment resolution just one week later, the Senate has remained out of session and won’t reconvene until Jan. 19.
Under Senate impeachment rules, House Democrats could exhibit the article before the Senate on Jan. 19 at the earliest, and Senate lawmakers would consider the matter one or two days later.
That means Senate consideration would not start until 1 p.m. on Jan. 20, an hour after Trump’s presidency ends. Senate Democrats that day will assume the majority after Vice President-elect Kamala Harris is sworn into office and can vote to break ties in the new 50-50 Senate.
The leaders of the incoming Senate Democratic majority have signaled they’ll quickly hold a trial.
But some legal experts say the Constitution does not address the impeachment of ex-presidents, although in this case, Trump was impeached by the House while still in office.
However, as a private citizen, Trump would not enjoy the same protections to aid him during a trial, such as taxpayer-funded lawyers and other privileges enjoyed by a sitting president. And it is not clear who would preside over a Senate trial.
The Constitution calls for the chief justice of the Supreme Court to oversee a Senate trial of a sitting president and makes no mention of an ex-president’s trial.
J. Michael Luttig, a former judge for the U.S. Court of Appeals for the 4th Circuit (1991 to 2006), argued in the Washington Post that senators will run into legal challenges if they attempt to convict Trump to prevent him from holding office again.
“Once Trump’s term ends on January 20, Congress loses its constitutional authority to continue impeachment proceedings against him, even if the House has already approved articles of impeachment,” Luttig wrote.
Democrats, and probably a few Republicans, hope that by impeaching and convicting Trump, they can block him from any future election to higher office.
But Luttig said Article I, Section 3 indicates that the Senate could only stop Trump from holding public office if it removes him as a sitting president.
“It is a constitutional impeachment of a president that authorizes his constitutional disqualification,” Luttig wrote.
Some senators have already questioned the legality of a post-presidency trial.
Sen. Tom Cotton, an Arkansas Republican, is among the Republicans who opposed Trump’s impeachment in the House and say a Senate trial is unconstitutional.
“The Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” Cotton said. “The founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens. The Constitution presupposes an office from which an impeached officeholder can be removed.”
Even if the Senate holds a trial, it may be difficult to convict Trump of the impeachment article because a two-thirds majority is needed. That means 17 Republicans would have to side with Democrats if all of them vote to convict. So far, only a small handful of Republicans appear likely to vote to convict.
It could end up before the Supreme Court, Luttig argued.
“It is highly unlikely the Supreme Court would yield to Congress’s view that it has the power to impeach a president who is no longer in office when the Constitution itself is so clear that it does not,” Luttig wrote.
