Can the U.S. Senate convict Donald Trump for High Crimes and Misdemeanors after he leaves office?
A. Altieri D’Angelo
President Trump was impeached for a second time by the House of Representatives (the House) on February 3rd, 2021. The charge was the incitement of insurrection. He is accused of inciting the mob that stormed the Capitol Building on January 6th and attempting to change the election results in several states. The next step is to hold a trial in the Senate.
The critical issue will be whether the Senate can impeach someone who has left office.
The Constitution provides the Senate has the sole power to hold a trial and convict or acquit anyone charged with impeachment. The Supreme Court went further in Nixon vs. the United States (a case involving the impeachment of a Federal judge) when it ruled that the judiciary had no business weighing in on the question of impeachment. The Senate is the final arbiter.
Two articles deal specifically with impeachment: Article II, Section 4 of the U.S. Constitution provides, “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.” Article 1, Section 3 states, “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.
(The term high Crimes and Misdemeanors are not well defined. Gerald Ford, Minority leader of the House and later President, once said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.)
The Senate trial will require two votes. The first is a two-thirds vote to convict someone of an impeachment charge and remove him from office. The second vote, which only requires a majority, will disqualify the person from running for an elected position in the future.
The language of the impeachment provisions is clear. The problem is that the articles fail to mention that an impeachment process can occur during or after a person leaves office. In Trump’s case, the House impeachment proceeding occurred while he was in office and, therefore, not an issue. The Senate trial will happen after Trump ceased being President.
Constitutional scholars disagree over this issue. The conservative view is that no official can be impeached or tried if he is no longer in that position. They point out that there is no language in Article 2, Section 4, that suggests that a person is liable for his actions after leaving office. They also note that the penalty for impeachment is limited to removal from that position. This logic requires a person to be in the office to be convicted. Other legal theorists take the view that such an interpretation makes no sense. They note that a fundamental constitutional principle is that no one is above the law-not even Presidents. To limit impeachment to an official in office would effectively allow that person to avoid all liability by resigning before impeachment, thereby preventing any impeachment claim or trial.
There are legislative precedents that support the idea one does not need to be in office when an impeachment process is commenced. John Quincy Adams, the 6th President of the U.S., stated, “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.” He believed there was no statute of limitations in regards to impeachment.
In 1876, Secretary of War, William Belknap, was put on trial by the House. Belknap had resigned weeks before to avoid an impeachment trial. The House found him guilty. The Senate spent a month arguing over whether he should be tried, given that he had left office. Some pointed out the Constitution never referenced impeaching a private citizen. In the end, the Senate voted to hold a trial-a move that supported the idea that everyone is accountable for their actions; but he was acquitted. The Senate failed to achieve the two-thirds vote needed for conviction; many Republican Senators voted for acquittal because they did not believe the trial was constitutional.
This issue will allow many Republican Senators to avoid convicting the Ex-President by arguing the trial is unconstitutional. Their fear of Trump and his supporters will cause them to put party over the U.S. even though 56% of the country believes Trump should be impeached.
It is unlikely that the Supreme Court will intervene in an impeachment trial, given they have already stated the Senate has the sole power in such matters. But the American people will decide the issue. They will remember which Senators voted for Trump. One can only hope that those that failed to fulfill their constitutional duty will not be re-elected.