On January 13th, the House of Representatives voted to impeach President Trump for a second time for his role in the Capitol riots on January 6th.
However, Senator Mitch McConnell (R-KY) quickly ruled out the possibility of impeaching the President before he leaves office. He doesn’t plan to start the impeachment trial before the Senate holds its first session on January 19th, a day before Joe Biden is sworn in as President of the United States. This is especially relevant because a subsequent vote after the impeachment trial would mean President Trump would be barred from running for office ever again.
Yet, for many, this would mean that the impeachment trial is unconstitutional. A blunt reading of Article 2, Section 4 of the Constitution seems to support this view:
“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.”
After Mr. Trump leaves office, he is no longer a civil officer, which means he cannot be impeached… Right?
It’s not that simple.
The arguments and precedents for the impeachment
Michael Gerhardt, professor of Constitutional Law at the University of North Carolina, says there are arguments for believing such impeachment is constitutional. Gerhardt is a researcher and author of the impeachment process and was called to testify during the impeachment hearings of the first impeachment against President Trump.
“The Constitution does not provide any time frame for an impeachment. Three different times Congress has proceeded with impeachment and a trial after the person has left office; those precedents provide a strong foundation for the Senate to proceed with a trial after Trump leaves office,” Professor Gerhardt told El American.
He reads Article 2, Section 4 as not specifying a time frame for the impeachment. “That omission makes sense since presidents – and any other impeachable officials – could commit impeachable offenses at any time while they are in office, including in their last months or days in their positions. It certainly makes no sense for presidents who commit misconduct late in their terms to be immune from the one process the Constitution allows for barring them from serving in any other federal office,” he added in an article for Just Security.
Gerhardt also establishes a hypothetical scenario where such misconduct is not discovered after the president leaves office, “There may be no practical means for holding him accountable for such misconduct (…) Being president is not a safe harbor from political and legal accountability.”
In an article for the Washington Post, Laurence H. Tribe of the Harvard Law School cites John Quincy Adams, 6th President of the United States on the House floor, saying: “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.”
There are a handful of precedents that seem to support this position.
In 1797, Congress impeached senator William Blount from Tennessee for conspiring with Great Britain. Although the Senate did not muster enough votes to convict him, they did affirm the Senate could hold an impeachment trial against an official who was no longer in office (Senator Blount had been expelled from the Senate).
William Belknap, Secretary of War of President Ulysses Grant, was also impeached for corruption in 1876. He resigned a few hours before the House of Representatives voted on the articles of impeachment but then was impeached unanimously. Then, the Senate held a vote to determine if it had jurisdiction to try Belknap and determined it had by a 37-29 vote. The Senate later acquitted Belknap.
“Those, and one other precedent, are analogous to the current situation in that they all show that Congress has consistently taken the position that it may proceed with an impeachment after an official has left office. The Blount precedent is especially important because the First Congress made the decision to proceed with a trial after he was forced out of office, and the First Congress is given great deference because many of its members helped to draft and ratify the Constitution. And Belknap is especially relevant because he resigned to avoid being impeached, but the House impeached him and a majority of senators agreed to convict him,” Gerhardt told El American.
Arguments against impeachment
However, not everyone agrees with this view. Jonathan Turley, professor of Constitutional Law of the George Washington University and witness during the Clinton and Trump impeachments’ hearings, is among them.
“The arguments against this effort are quite compelling. Indeed, if it is inappropriate to seat the Chief Justice because Trump is not the president, it is doubly improper to hold the impeachment in such a case. The presidential impeachment trial is clearly established in Article I, Section 3, Clauses 6 and 7 to provide for a trial with the Chief Justice of the United States,” professor Turley told El American in exclusive.
Furthermore, he also believes that some precedents may actually benefit Trump: “I can say that the operating principle has been that a former judge is not subject to being called for an impeachment trial. If a judge resigns, they have not been subjected to this process.”
“The Constitutional text strongly militates against a vote of retroactive removal,” he added. “It speaks to a sitting president and the removal of that president. Consider the lunacy of that vote. The Senate will vote as if Trump were still in office to remove. It is akin to the Cadaver Synod.”
Yet, the precedents mentioned by Gerhardt and Tribe might still be a compelling argument. To this end, professor Turley stated about the Sen. Blount impeachment “That case has always been anomalous as the impeachment of a former legislative figure. The Senate rejected it. The Blount impeachment was flawed on several levels. Expulsion was clearly within the authority of the Senate.”
“Few people view impeachment as the appropriate remedy in such cases today. Blount was accused of effectively betraying the country by conspiring with Great Britain. Yet, the articles of impeachment were comparably vague. Notably, Blount went on to serve in state office for the remainder of his life.”
Yet, the Sec. Belknap’s impeachment might still be a strong precedent. “Belknap is closer to the current dispute as an executive officer. Belknap notably was impeached after leaving office as opposed to Trump, who was impeached shortly before leaving office. However, there remains the threshold question of the trial of a president for removal who is in fact, an ex-president who has already left office,” Turley told El American.
He’s not alone in this view. J. Michael Luttig, a former judge of the U.S Court of Appeals for the 4th Circuit, also said such an impeachment would be unconstitutional in an op-ed piece for The Washington Post: “Trump would no longer be incumbent in the Office of the President at the time of the delayed Senate proceeding and would no longer be subject to “impeachment conviction” by the Senate, under the Constitution’s Impeachment Clauses. Which is to say that the Senate’s only power under the Constitution is to convict — or not — an incumbent president.”
Thus. he opposes that the President would be impeachable under the impeachment clauses of the Constitution: “The very concept of constitutional impeachment presupposes the impeachment, conviction and removal of a president who is, at the time of his impeachment, an incumbent in the office from which he is removed. Indeed, that was the purpose of the impeachment power, to remove from office a president or other “civil official” before he could further harm the nation from the office he then occupies.”
Further, in an op-ed for USA Today, professor Jonathan Turley adds other potential issues the impeachment may have. “My objection to this second impeachment was that it proceeded without any deliberation of the traditional impeachment process. (…) A hearing could have been held in a day to allow the language of the article to be amended and the implications of the impeachment considered. It would also have allowed for a formal demand for a response from the president.”
“In the last Trump impeachment, I chastised the Democrats for pushing through an impeachment on the slimmest record and the shortest time frame of any presidential impeachment. They insisted that there was no time for witnesses before the House Judiciary hearing, but later waited weeks to submit the articles to the Senate. Now they have outdone that record with an impeachment with no traditional record in a matter of a couple of days,” he added.
Yet, Luttig admits that some of the precedents can back the argument that Congress may impeach a former president. “Congress’s understanding of its constitutional powers would be a weighty consideration in the ultimate determination whether the Congress does possess such authority. If the former president goes to court to challenge his impeachment trial as unconstitutional, Congress is sure to make its argument based on these congressional precedents (…) that would almost certainly make its way to the Supreme Court.”
Further, Sen. McConnell’s latest statement seems to leave open the possibility of an impeachment trial held in the Senate after Trump leaves office. This potentially means that he interprets the Constitution as providing the Senate the power to impeach a president after leaving office.
And what about the convenience of impeaching Trump?
Such a trial’s convenience is a whole different thing than its constitutionality. In a 1975 article for the American Bar Association Journal titled The Politics of Impeachment, Albert Broderick discusses the political grounds under which Congress may refuse to impeach a president. He names four: 1) The availability of a less drastic means to achieve removal, 2) The consequences of removing the president at a particular time. 3) Consideration of the impeachable offense in light of the qualities the President may exert in the public interest. 4) Not employing it in borderline situations.
The first two are particularly relevant to the impeachment against Trump. The first one is that he would have already left office, and the second because the consequences might be too profound.
“On the merits, I do not fault those who view the President’s words as impeachable (…) However, the language of the article is sweeping and raises serious concerns of this standard for future presidents. There is a concern over presidents being removed for reckless rhetoric that leads to violence by supporters,” professor Turley says in an article.
“If you look at other provisions, such an interpretation would produce utter madness. It would also invite utter mischief. With the combination of a snap impeachment, it would allow the use of this provision to negate political threats,” he said exclusively to El American.
Professor Gerhardt concurred with the inconvenience of holding an impeachment trial, at least for now. “The current climate does make it difficult for Congress to proceed with any part of impeachment after he leaves office. It is not just the sharp divisions in the country and Congress but that a trial could distract from the inauguration and first 100 days for soon-to-be President Joe Biden.”
To convict a president, two-thirds of the senators need to vote in favor. This means at least 17 Republican senators would need to support the process. Despite some of them calling on Trump to resign, none have publicly supported an impeachment.
Some Democrat senators seem skeptical about the impeachment. Sen. Joe Manchin (D-WV), the most moderate member of the Democratic caucus told Fox News that the impeachment was “ill-advised” because they know “the votes aren’t there.”
Meanwhile, Democrats from Nevada, Sen. Jacky Rosen, and Sen. Catherine Cortez Masto refused to clarify if they support the impeachment in their latest statements.
Some fear that a second impeachment, especially a failed second impeachment, might increase Mr. Trump’s popularity.
“A conviction would also not bring the closure as many may hope. Such disqualification would be one of the few impeachment issues that could be challenged in court,” Turley noted in his op-ed. “Trump would have standing to sue for his right to run again, and he could well win. He would then be more popular than ever with many citizens eager to defy the Washington establishment.”
This means that the impeachment, and particularly a failed impeachment, may backfire. It could potentially not heal divisions but increase them, and it would not undermine Trump’s popularity, but increase it.
“I don’t believe the House should move forward with impeachment,” Sen. Marco Rubio (R-FL) recently told NBC Florida. “Not because the president doesn’t bear some responsibility but because I think it will further inflame an already divided country at an already difficult moment.”
“It threatens to make him a martyr,” he added.