Opinion | The Senate can constitutionally hold an impeachment trial after Trump leaves office



The Constitution, Article II, Section 4, supplies that the president and different civil officers “shall be removed from Office” following impeachment and conviction by the Senate. Some students, most prominently former federal appeals court judge J. Michael Luttig, have argued that as a result of Trump’s time period could have already ended and he, by definition, can’t be eliminated, the impeachment energy not applies.

With all respect, I disagree. The Constitution references impeachment in six locations however nowhere solutions that exact query. Article I, Section 3 comes closest to delineating the contours of the Impeachment Power, instructing that “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.”

These “judgments” — elimination and disqualification — are analytically distinct and linguistically divisible. Their divisibility was first established by the Senate through the 1862 trial of federal-turned-confederate Judge West Humphreys and reaffirmed by a parliamentary inquiry through the 1936 trial of impeached Judge Halsted Ritter. The solely court docket to address the issue agreed with the Senate that an impeachment trial may proceed even after the person was not in office.

To make sure, a former officer might not be “removed” even upon conviction by a two-thirds vote. But that has no bearing on whether or not such an ex-officer could also be barred completely from office upon being convicted. That separate judgment would require not more than a easy majority vote.

Concluding in any other case would all however erase the disqualification energy from the Constitution’s textual content: If an impeachable officer grew to become immune from trial and conviction upon leaving office, any official seeing conviction as imminent may simply take away the prospect of disqualification just by resigning moments earlier than the Senate’s anticipated verdict.

The clear weight of historical past, unique understanding and congressional follow bolsters the case for concluding that the top of Donald Trump’s presidency wouldn’t finish his Senate trial.

The impeachment energy derives from the ability of the British Parliament. One explicit British impeachment featured prominently within the framers’ conception of the ability: that of the former colonial governor of India, Warren Hastings. Led by Edmund Burke, the Hastings impeachment was repeatedly referenced through the Constitutional Convention in Philadelphia and, critically, was carried out completely after Hastings had left office. Given the prominence of the Hastings’s impeachment to the framers, the absence of debate on the query on the federal or state ratifying conventions — to not point out the silence of the Constitution’s textual content on the purpose — speaks volumes.

So it’s unsurprising that Congress has all through the nation’s historical past thought of the ability to try to choose impeachments to increase previous an officeholder’s time period. The query was first raised through the tried 1797 impeachment of Sen. William Blount. One of the lead House prosecutors, Rep. James Bayard and Blount’s lawyer agreed {that a} civil officer couldn’t escape impeachment by resignation. President John Adams concurred, declaring that “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”

Likewise, in 1876, Secretary of War William Belknap resigned minutes earlier than the House was set to impeach him; the House nonetheless transmitted 5 articles of impeachment to the Senate. At Belknap’s trial, the Senate voted 37 to 29 that he was “amenable to trial by impeachment …notwithstanding his resignation of said office.” And the House and Senate guidelines have each lengthy permitted the impeachment and trial of former officers for abuses dedicated whereas holding office.

Focusing on the needs of the impeachment energy yields the identical conclusion. Its operate is potential somewhat than punitive: to stop officers who’ve betrayed their oaths from committing additional abuses and thereby inflicting future hurt.

The want to guard the nation can generally be happy merely by eradicating a harmful officer from energy. Still, the inclusion of a separate energy to disqualify is a transparent recognition that elimination won’t all the time be enough. For such instances, the Constitution expressly offered the extra treatment of exclusion.

Disqualifying President Trump from ever once more holding federal office is a very appropriate treatment for fomenting and inciting revolt. It can also be becoming in stripping Trump of the very factor that motivated his impeachable offenses: the pursuit of future energy.

To render this uniquely applicable treatment unavailable just because the gravest abuses of energy have been dedicated close to the very finish of a president’s time period could be weird at finest, self-sabotaging at worst. Nothing within the Constitution suggests {that a} president who has proven himself to be a lethal menace to our survival as a constitutional republic ought to be capable of run out the clock on our means to sentence his conduct and to make sure that it can by no means recur.



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