Understanding Impeachment: Legal and Political Analysis of Senate Trials and Constitutional Limits
The Constitution specifically outlines that impeachment trials are reserved solely for incumbent presidents, not former ones.
Even if the House of Representatives were to impeach President Trump this week, the Senate trial wouldn’t commence until after Trump has vacated the office, and President-Elect Biden assumes the presidency on Jan. 20. Conducting such a trial in the Senate under these circumstances would violate the Constitution.
House Majority Whip James E. Clyburn (D-S.C.) indicated on Sunday that while House Democrats plan to introduce articles of impeachment against President Trump this week, they might hold off on sending these articles to the Senate until after President-elect Biden’s first 100 days in office. Biden has suggested an alternate plan where the new Senate focuses on his legislative agenda and Cabinet confirmations during the mornings, reserving afternoons for the impeachment trial.
The sequence of events, with impeachment proceedings in the House before Trump’s term ends and the Senate trial potentially months later after the new president is inaugurated, raises a fundamental question: Can a former president be impeached?
The Constitution unequivocally answers this query: No, a former president cannot be impeached. Once Trump’s term concludes on Jan. 20, Congress lacks the constitutional authority to pursue impeachment proceedings against him, even if the House has already passed articles of impeachment.
This limitation stems directly from the Constitution. At the time of the delayed Senate proceeding, Trump will no longer hold the Office of the President and thus cannot be subject to impeachment conviction by the Senate, as outlined in the Constitution’s Impeachment Clauses. Essentially, the Senate’s constitutional power extends solely to incumbent presidents.
The intent, language, and framework of the Constitution’s Impeachment Clauses reinforce this straightforward interpretation.
The concept of constitutional impeachment presupposes the removal of a sitting president from office through impeachment, conviction, and removal. The purpose of impeachment is to preemptively remove a president or other civil official from office before they can inflict further harm upon the nation.
The language of the Constitution’s Impeachment Clauses corroborates this understanding. For instance, Article II, Section 4 states, “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.” Similarly, Article I, Section 3 specifies that impeachment judgments only extend to removal from office and disqualification from holding future federal offices.
While some argue that the Senate could still try and convict a former president to disqualify them from future office, this notion contradicts the constitutional process. Constitutional impeachment is a prerequisite for constitutional disqualification. If a president hasn’t been constitutionally impeached, the Senate lacks the authority to disqualify them from holding future office.
Certain constitutional scholars point to historical precedents, such as the impeachments of Senator William Blount in 1797 and Secretary of War William Belknap in 1876, where Congress impeached civil officials after their resignation. These cases lend support to the argument that Congress may have the constitutional power to impeach a former president. Ultimately, Congress’s interpretation of its constitutional powers holds significant weight in determining whether it possesses such authority. Any legal challenge to an impeachment trial of a former president is likely to reach the Supreme Court, where Congress would likely rely on these precedents to support its argument.
However, the ultimate authority to decide whether Congress can impeach a former president lies with the Supreme Court. Given the clarity of the Constitution on this matter, it’s improbable that the Supreme Court would defer to Congress’s interpretation that it has the power to impeach a former president who is no longer in office.