Those who oppose a Senate impeachment trial for former President Donald Trump usually fall back either on a claim that “he’s out of office, why bother?” or that conducting an impeachment trial of a former president is unconstitutional.
But, what is the law on the subject? Is the Senate allowed to conduct an impeachment trial after someone leaves office? What does the Constitution provide, and what did the Framers intend?
The Constitution Article II, Section 4 reads:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment… and Conviction.”
Some point to that language and claim it means impeachment applies only to current officeholders – and that the main goal of impeachment and conviction is removal from office.
But that’s not the view of the preponderance of legal scholars, according to the Congressional Research Service, the public policy research arm of Congress. The prevailing legal consensus is that a trial is within the scope of the Senate.
While the text of the Constitution is open to debate, the weight of scholarly authority agrees that the impeachment process, including a trial, can be applied to officials who are no longer in office.
The lead precedent is the 1876 trial of Secretary of War William Belknap, who resigned after the House received evidence that he had taken kickbacks from an associate appointed to run a frontier trading post. A trial occurred in the Senate and Belknap was acquitted.
There are two penalties for impeachment: Removal from office is one, but barring someone from holding public office again is another option.
The Constitution Article I, Section 3, Clause 7 provides:
“Judgment in Cases of Impeachment shall not extend further than to remove from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States…”
That provision is the reason to believe impeachment applies to former officeholders. As the CRS notes, “Congress could never bar an official from holding office in the future as long as that individual resigns first.”
Delegates at the Constitutional Convention also accepted that officials could be impeached after stepping down, according to the CRS analysis. It notes, “This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office.”
On the facts, there can be no doubt that Trump committed an impeachable offense.
He urged a crowd of supporters to march on the U.S. Capitol and pressure his vice president and Congress to abuse their authority by overturning the results of a free and fair election that he lost.
When a mob forced its way into the Capitol and disrupted the counting of electoral votes, Trump failed to forthrightly tell the rioters to stop. He didn’t tell them to go home until hours later and failed to condemn the violence until the next day.
This mob action came in the context of Trump pressuring Republican officials in states to throw the election to him (most egregiously in his phone call with Georgia Secretary of State Brad Raffensperger) and his ceaseless campaign of conspiracy theories and lies intended to delegitimize the election.
This was gross misconduct that the impeachment clause was meant to address.
Speaker Nancy Pelosi rushed the proceeding in one day — with no fact-finding hearing. The single adopted Article of Impeachment for “Incitement Of Insurrection” is subject to rejoinders. The use of the word “incitement” invites factual and legal objections, and the “insurrection” finding may be overstated and problematic.
Getting the needed 17 Republican Senate votes appears remote. After a conviction by two-thirds of the Senate, a majority could vote to disqualify Trump from future federal office.
Nevertheless, Trump’s offense was outrageous — his conduct truly indefensible. Senate Republicans must take the impeachment trial extremely seriously and be prepared to invoke the Constitution’s ultimate sanction for presidential abuse of office.
Jim Hartman is an attorney residing in Genoa. E-mail firstname.lastname@example.org.