Photographer: Chip Somodevilla / Getty Images
Photographer: Chip Somodevilla / Getty Images
Donald Trump’s second impeachment trial will be the first to extend beyond a president’s tenure, creating a new legal issue that could eventually require a Supreme Court resolution.
The answer isn’t clear, but history has bad news for Trump: A sparse but consistent series of lower-level charges in the past suggests that the Senate retains the power to try him even after his term in office ends. If it convicts him, the Senate can hold a second vote to prevent him from running again.
A number of legal scholars say that the drafters of the constitution had no intention of releasing presidents in the final days of their term to commit gross crimes without consequence.
“History drafting, impeachment practices and basic constitutional draft all clearly point in favor of the constitutionality of trying an ex-president,” said Kate Shaw, a professor of constitutional law at Cardozo School of Law.
Donald Trump is leaving the White House for Texas on January 12.
Photographer: Drew Angerer / Getty Images
The The constitution does not explicitly say whether a senate process can take place after a president leaves office. Article II, Section 4 says that the President and other officials “will be removed from office” if convicted. Article I, Section 3 says that the Senate’s remedies are limited to removal and disqualification from office in the future.
But the context in which the constitution is written provides some pointers. The 1787 Constitutional Convention took place when the British Parliament was impeaching and trying William Hastings, the former Governor General of India.
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And the practice since then suggests a broad understanding that the Senate retains jurisdiction, said Brian Kalt, a professor at Michigan State University College of Law and author of a 2001 legal review article on so-called late impeachments.
“In several cases, the The House and Senate have acted as if they could impeach and try people who have already left office, and in one case the Senate has cast a specific vote for that, ”said Kalt.
Congress first appealed to impeachment power in 1797, when the House charged Senator William Blount with conspiring to allow the British to take control of the Spanish-controlled areas of Florida and Louisiana. The Senate held a trial, although it had already expelled Blount. Senators finally cleared him on the individual grounds that he was not an “officer” under the impeachment clause.
In 1876, the Senate voted 37-29 that it had the authority to try ex-Secretary of War William Belknap, even though he had resigned just as the House was ready to charge him for accepting a bribe. The Senate eventually acquitted Belknap.
In several cases since then, including the 2009 case of former U.S. District Judge Samuel Kent, lawmakers have said the official’s resignation did not affect the Senate’s right to sue, Kalt and Frank Bowman, professor of law at the University of Missouri wrote in the Washington Post this week.
Judge’s View
A prominent retired federal court judge, J. Michael Luttig, argued this week that the Senate cannot try Trump after he leaves office. Useful wrote in the Washington Post that the purpose behind the impeachment clause was to prevent an official from using a government position to do further damage to the country.
“The very concept of constitutional impeachment assumes the impeachment, conviction and removal of a president who, at the time of his impeachment, is a person sitting in the office from which he has been removed,” wrote Luttig. But he added that history provides “some support” for the argument that the Senate can go after Trump leaves office.
Luttig, who was a shortlisted candidate for the Supreme Court when Republican George W. Bush was president, recently informed Vice President Mike Pence that he was not authorized to change the election results during the vote count, according to the New York Times. in Congress. .
Judiciary
Gregg Nunziata, a former Republican attorney for the The Senate judicial committee tweeted on Wednesday that “some conservatives are being misled by Judge Luttig.”
“Impeachment power includes the power to disqualify for life,” Nunziata added. “If office holders could simply step down to escape this important punishment, it would result in nullity.”
Regardless of its merits, it’s not clear that the Supreme Court would even consider a Trump challenge to the Senate’s authority. In 1993 the court came said it was a “political issue” – and therefore beyond the reach of the courts – when an impeached judge objected to using a Senate committee to hear evidence as part of his trial.
Referring to granting the constitution to the Senate to “ attempt ” impeachment, the court said that term “ is not precise enough to provide a legally manageable standard of review. ”
Trump could counteract it by pointing to a 1969 decision whereby Representative Adam Clayton Powell Jr. challenges the House’s refusal to accommodate him. That battle centered on the constitutional provision that allows the House and Senate to assess the “qualifications” of their members.
The Supreme Court said the doctrine of political questions did not apply because the case “required no more than an interpretation of the constitution”.