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No, Trump can't dodge his impeachment trial just because he's out of office

Experts, including a top GOP lawyer, have pushed back on Republican claims that Donald Trump’s second impeachment trial is a sham.

By Donna Provencher - February 09, 2021
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Donald Trump

Senate Republicans have spent much of the lead-up to Donald Trump’s second impeachment trial proceedings falsely claiming it’s unconstitutional to impeach a president who has left office, a claim Trump’s legal team is also advancing in his defense.

Constitutional law experts, however, say they’re wrong.

On Jan. 13, Trump was impeached in the House of Representatives for “incitement of insurrection” for his role in provoking the far-right extremists who attacked the U.S. Capitol on Jan. 6. On Tuesday, his historic second impeachment trial in the Senate began, with Republicans already insisting the process was unconstitutional.

“I think the constitutional defects of this, both in the House and the Senate are overwhelming,” said Sen. John Kennedy of Louisiana, speaking to CNN before the trial. “You don’t have to be Judge Judy to see the constitutional defects.”

Sen. Roger Wicker of Mississippi told the outlet during a break in the four-hour debate over the constitutionality of the process that while he was impressed by the Democratic impeachment managers’ arguments, he still believed trying the president was unconstitutional.

“No,” he said, when asked if anything could change his mind.

Republicans were on the offensive before the trial even got underway.

“I’m ready to end the impeachment trial because I think it is blatantly unconstitutional,” Sen. Lindsey Graham (R-SC) said Sunday. “This impeachment, in the eyes of most Republicans, is an unconstitutional exercise.”

The same day, Sen. Rand Paul (R-KY) slammed the trial as a “partisan farce.”

“Zero chance of conviction,” he added. “Forty-five Republicans have said it’s not even a legitimate proceeding so it’s really over before it starts.​”

Paul was referring to his attempt two weeks earlier to have the entire impeachment trial thrown out, arguing that Trump was a private citizen and therefore the trial was unconstitutional. The Senate motion was ultimately voted down, 55-45.

Trump’s own attorneys raised a similar argument in a brief filed on Monday. “The Senate is being asked to do something patently ridiculous: Try a private citizen in a process that is designed to remove him from an office that he no longer holds,” they wrote.

They added, “The Senate of the United States lacks jurisdiction over the 45th president because he holds no public office from which he can be removed, rendering the article of impeachment moot.”

But during the impeachment trial Monday, impeachment manager Rep. Jamie Raskin (D-MD) refuted this claim, arguing that it would set an unconscionable precedent if the Senate refused to try Trump for his incitement of the deadly attack on the Capitol that left five dead.

“Their argument is that if you commit an impeachable offense in your last few weeks in office, you do it with constitutional impunity,” Raskin said. “If we buy this radical argument that President Trump’s lawyers advance, we risk allowing Jan. 6 to become our future.”

In a Wall Street Journal op-ed Sunday, top conservative attorney Chuck Cooper defended the constitutionality of the trial, arguing that removal from office is simply a “mandatory minimum” punishment, but punishment is not limited to removal from office.

“The trial’s opponents argue that because [Article II, Section 4 of the Constitution] requires removal, and because only incumbent officers can be removed, it follows that only incumbent officers can be impeached and tried,” he wrote. “But the provision cuts against their interpretation. It simply establishes what is known in criminal law as a ‘mandatory minimum’ punishment: If an incumbent officeholder is convicted by a two-thirds vote of the Senate, he is removed from office as a matter of law.”

Further, he noted, “If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling. But it isn’t.”

As impeachment expert and University of Missouri law professor Frank Bowman noted, speaking with USA Today, even if Trump can no longer be removed from office, it’s important to hold the trial to potentially preclude him from holding future office.

“Perhaps the most important point is that the framers included the disqualification remedy precisely in order to deal with a person like Trump — a classic ‘demagogue’ who seeks to gain, and then perpetuate himself in, power by direct appeals to passions and prejudices of the masses,” he said.

He added that “the danger of such a person is not extinguished once he is out of office.”

Only two other federal officials in U.S. history have faced Senate trials after leaving office. The first was former Tennessee Sen. William Blount, who was tried in 1798 after being expelled from the Senate, although the case was later dropped. The second was former Secretary of War William Belknap, who resigned before he could be impeached but still faced trial in 1876. He was ultimately acquitted.

Some Republicans have also argued that the trial is not constitutional since Sen. Patrick Leahy (D-VT), acting as president pro tempore of the Senate in Vice President Kamala Harris’ absence, was presiding over the proceedings, and not Chief Justice Roberts.

But the Constitution only requires the chief justice of the Supreme Court to preside over impeachment proceedings of a sitting president. It does not specify who is to preside over impeachment proceedings of non-presidents.

Historically, when Senate impeachment trials have been held for non-presidents — such as Judge Harry Claiborne in 1986, Judge Walter Nixon and Judge Alcee Hastings in 1989, and Judge Thomas Porteous in 2010 — either the vice president or the president pro tempore of the Senate has presided.

Published with permission of The American Independent Foundation.


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