Constitutional Law

As House impeaches Trump for second time, some say Senate trial after his presidency is unconstitutional

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The U.S. House of Representatives on Wednesday impeached President Donald Trump for a second time, saying his behavior before the U.S. Capitol riots last week amounts to “incitement of insurrection.”

The House quickly approved the impeachment article, but a Senate trial isn’t expected to be as speedy. The Senate is unlikely to begin a trial before returning to session Jan. 19, a day before the inauguration of President-elect Joe Biden. That means that the trial would drag on after Trump leaves office.

Legal experts are divided on the constitutionality of a Senate trial after Trump leaves office, which could prevent Trump from holding office in the future, NBC News reports.

Some argue that constitutional impeachment clauses don’t envision a late trial, while others say the Constitution doesn’t specifically address timing and doesn’t ban a late trial.

The House impeached Trump by a vote of 232-197, with 10 Republicans voting to impeach, according to a count by the New York Times.

The article of impeachment, in its final version, makes the case that Trump’s false statements about election fraud and his address to supporters Jan. 6 foreseeably resulted in the crowd’s lawless action at the Capitol. His statements to the crowd included, “If you don’t fight like hell, you’re not going to have a country anymore.”

The impeachment article also says Trump tried to obstruct the election results, partly by a call in which he asked Georgia’s secretary of state to “find” the votes that Trump needed to win the state.

Many experts fall into two camps:

• The impeachment power only applies to current office holders. In this camp is Cass Sunstein, a professor at Harvard Law School and author of Impeachment: A Citizen’s Guide, NBC News reports. Others holding this view are Harvard Law School professor emeritus Alan Dershowitz and J. Michael Luttig, a former judge on the 4th U.S. Circuit Court of Appeals at Richmond, Virginia.

• The impeachment and trial can begin after the president leaves. Brian Kalt, a professor at the Michigan State University College of Law who wrote a law review article on the subject, is among that group, according to NBC News. So is Michael Gerhardt, a professor at the University of North Carolina School of Law in Chapel Hill, North Carolina, who is the author of The Federal Impeachment Process.

Those in the middle ground say the Senate can hold a trial after Trump leaves office, as long as the House votes to impeach before the president leaves, according to NBC News.

Luttig makes the case against a Senate trial after Trump leaves office in an op-ed for the Washington Post.

“Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment,” Luttig wrote in the Washington Post.

Luttig argued that the Constitution’s impeachment clauses presuppose that impeachment and removal of a president happen while in office.

As an example, he cited Article II, Section 4, which reads, “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.”

He also cited Article I, Section 3, which reads in part: “Judgment in cases of 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.”

Those with the opposite view are likely to cite two instances in which early Congresses impeached officials after they resigned, Luttig said. The two officials were Sen. William Blount in 1797 and Secretary of War William Belknap in 1876.

Expressing an opposing view is Gerhardt, who wrote at Just Security.

Gerhardt told the ABA Journal that he thinks a president can be impeached in office and tried later or even impeached and tried after leaving office.

The Constitution says nothing about the timing of impeachment, an omission that makes sense because presidents could commit impeachable offense in their last days in office and never be held accountable, Gerhardt argued at Just Security. The same reasoning applies if a president’s misconduct is discovered late in his term or after he leaves office.

Gerhardt also said the scope of impeachable offenses extends to misconduct that is not an actual crime, providing the only practical means for holding a president accountable when litigation or prosecutions aren’t viable options.

“Presidents are not above the law, not when they are in office, and not when they leave office,” Gerhardt wrote.

See also: “Could the 14th Amendment be used to disqualify Trump from office?”

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