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The Senate’s process to impeach former President Donald Trump officially began on Monday, when the House formally delivered articles of impeachment to the upper chamber.
There’s little debate about the central facts of the matter. Trump spent months telling his supporters the election was stolen, then on Jan. 6, riled up a mob that later stormed the U.S. Capitol to try to stop the electoral count and overturn the election results. In the House, 222 Democrats and 10 Republicans voted to impeach Trump for “incitement of insurrection.” Even several Senate Republicans have said what Trump did was wrong, although some argue it was not an impeachable offense.
But Republicans are still expected to try to stop Trump from being convicted ― not by arguing he’s innocent, but by arguing it’s too late.
Trump left office on Jan. 20, and the trial is set to begin in February. He will be the first ex-president to face such a trial.
Republicans have already presented what is likely to be a central argument for not convicting Trump. They argue that the Constitution does not allow for the impeachment or conviction of people who no longer hold office.
“[T]he Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” Sen. Tom Cotton (R-Ark.) said in a statement on Jan. 13. “The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens.”
“Last week, I opposed the effort to reject certified electoral votes for the same reason — fidelity to the Constitution — I now oppose impeachment proceedings against a former president,” Cotton added.
“Why are we doing this when the president is out of office?” Sen. Joni Ernst (R-Iowa) said on Jan. 19. When asked if she thought such an impeachment was constitutional, she added, “I don’t think it is.”
“I believe an impeachment trial of a former president is unconstitutional and would set a very dangerous precedent,” Sen. Ron Johnson (R-Wisc.) tweeted on Jan. 21. “There is no provision in the Constitution for holding such a trial over a former president who is now a private citizen.”
Sen. Rob Portman (R-Ohio) called the constitutionality of a late Trump impeachment “a serious issue” on Monday, according to CNN’s Manu Raju. “As I look at the Constitution it says that impeachment is for removal and keeping someone from running for office again, not or,” he added.
But this wouldn’t be the first Senate impeachment trial of an official who no longer held office. While there may be disagreement among constitutional scholars on whether such a late impeachment is possible, there is precedent for such an action.
And as Senate Majority Leader Chuck Schumer (N.Y.) argued on Monday, ignoring Trump’s impeachment would set a precedent of its own.
“The theory that the Senate can’t try former officials would amount to a constitutional get-out-of-jail-free card for any president who commits an impeachable offense,” Schumer said.
Can Former Officials Be Impeached?
Critics of late impeachment focus on three words in this section of the Constitution’s impeachment clause (emphasis added): “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.”
The question is whether the phrase, “all civil Officers,” means that only current and not former officials can be impeached. This is the argument that Republican senators like Cotton, Ernst and Johnson make when they reject Trump’s second impeachment as not permitted by the Constitution.
They also argue that former officials cannot be impeached because the punishment imposed by impeachment, removal from office, has already been met by their removal from office. What is the point of impeaching a president if they no longer serve in office?
The response to this argument was best made by Michigan State University Law School professor Brian Kalt in a 2001 journal article on the subject. Kalt’s article was published as debate swirled around a potential late impeachment for ex-President Bill Clinton for his last-minute pardon of the tax-evading financier Marc Rich.
What Kalt found in the history of the debate on the subject is that the authors of the Constitution knew about late impeachment in both the United Kingdom and the United States and did not discount it at the Constitutional Convention. Additionally, a number of states adopted late impeachment into their respective state constitutions.
Most important, though, there is precedent for late impeachment.
While Kalt writes that, “The arguments in favor of late impeachment have caveats and flaws,” he notes that, “the constitutional case for late impeachment has more strengths and fewer flaws than the case against it.”
The fact that Congress has weighed in on and approved late impeachment in the past is perhaps the strongest evidence that late impeachment is not unconstitutional.
Precedent For A Trial
On March 2, 1876, the House of Representatives voted unanimously to impeach Secretary of War William Belknap hours after President Ulysses S. Grant accepted his resignation. Belknap hurriedly resigned as a congressional probe revealed that he had accepted kickbacks through his second and third wives from a wealthy contractor whom he had awarded a military trading post. He hoped that the resignation would forestall further embarrassment and punishment. It did not.
The Senate trial began with a motion by Belknap’s counsels for the chamber to rule on whether or not it had the jurisdiction under the Constitution. They made the same argument that Senate Republicans make today in calling the late impeachment of Trump unconstitutional.
Those arguments failed. The Senate fully debated every aspect of the late impeachment issue and then voted to allow it in a 37-29 vote.
The debate featured some arguments that will be heard soon at Trump’s second impeachment trial.
Senators against jurisdiction appealed to the lack of any mention of former officials in the Constitution’s impeachment clause and warned that late impeachment would bring about abuse whereby anyone could be impeached at any time.
“If the Senate has jurisdiction to try one private citizen upon impeachment it has a right to try any private citizen by the same process,” Sen. Simon Cameron, a Republican from Pennsylvania, argued.
Proponents of late impeachment countered that the lack of mention of late impeachment in the Constitution does not forbid it, the debates of the Constitutional Convention did not deny it and many states affirmed late impeachment in their own constitutions. They also argued that the punishment of impeachment in the Constitution goes beyond removal to include disqualification.
“A sentence to disqualification is a humiliating badge affixed to high crimes and misdemeanors in office, and operates for the public safety not only by the exclusion of the criminal from office but as a warning and example to all public officers, tending to purity in office,” Sen. Aaron Sargent, a Republican from California, said.
Such a disqualification would not only be used as the maximal punishment to prevent a corrupt official from returning to power to further engage in corrupt acts, but would act as a deterrence.
“[T]his supreme punishment is, in my judgment, inflicted not only to get rid of a bad man in office, not only to prevent that man ever being restored to office, but chiefly, by fearful example, to teach all men that American institutions and the perpetuation of free government, of the people, by the people, and for the people, demand purity in office,” Sen. Samuel Maxey, a Democrat from Texas, said.
The two sides also debated over the meaning of prior precedents. Belknap’s late impeachment was itself not the first such late impeachment to reach the Senate.
In 1797, the Senate held an impeachment trial for ex-Sen. William Blount, a Federalist from Tennessee, for his role in attempting to help Great Britain seize Spanish-controlled areas in Florida and Louisiana as part of a scheme he concocted to pay off debts incurred from land speculation.
After his scheme was revealed, the House impeached Blount and the very next day the Senate voted to expel him. This put the Senate in the odd position of having removed Blount from office, but still on the hook for holding an impeachment trial.
Blount’s main defense was that senators, or other members of Congress for that matter, could not be impeached, but only expelled by their respective chamber. His second defense was that, if senators could be impeached, ex-senators could not be impeached. This was both the first test of whether a member of Congress could be impeached and what is called late impeachment or impeachment of a former officer.
The Senate didn’t ultimately vote on whether he could be impeached as a former senator. That’s because it sided with him on the first point: that members of Congress cannot be impeached. That precedent continues to this day.
Years later, when the Senate was considering the Belknap case, opponents of late impeachment argued that the Blount case amounted to a precedent against late impeachment. Those in support of late impeachment noted that the Senate had only voted on one issue: whether members of Congress were subject to impeachment. And this issue was not the same as the constitutionality of late impeachment.
In the end, the Senate in 1876 voted to move forward to a trial for Belknap. When the time to vote for conviction arrived, the senators who voted to acquit largely stated their belief that the Senate did not have jurisdiction as reason for their vote. The failure to convict Belknap on a rather clear-cut case of corruption due to senators’ objections to jurisdiction may muddy the meaning of it as a precedent.
“In sum, the Belknap case provides a precedent that federal officials can be impeached and tried after they have left office,” Kalt writes. “Nevertheless, it is a binding precedent only to the extent that the Senate wishes to be bound.”
Is Trump Worthy?
Over the years, lawmakers and the public have floated the idea of late impeachment for former presidents.
Lawmakers dropped the existing impeachment targeting President Richard Nixon because he had apologized and publicly accepted responsibility in addition to resigning his office. In 2001, Sen. Arlen Specter, then a Republican from Pennsylvania, floated the idea of impeaching Clinton after he left office for the Rich pardon, but this went nowhere.
It appears that the issue of late impeachment is up to the Senate to decide upon on a case-by-case basis. Which means that Trump’s unique case should be examined both on its own merits and based on the reasons why late impeachments were avoided or, in Belknap’s case, accepted in the past.
First of all, Trump was impeached by the House on Jan. 13 while he was still in office. Belknap had resigned his seat hours before the House impeached him and the Senate still held it had jurisdiction. If anything, this puts even more weight on the constitutionality of a Senate trial for Trump’s second impeachment.
Second, what Trump is accused of doing is far worse than any action committed by any government official who faced impeachment in the past. And most of what he did to merit impeachment is part of the public record. He lied about the potential for fraud with mail-in voting. Then when he lost he pointed to his lies about mail-in voting to falsely claim that he won the election. He then attempted to pressure state-level and local Republican officials to invalidate the election results or, in the case of Georgia Secretary of State Brad Raffensperger, to “find” votes that would make him the winner or else face prosecution.
When these efforts were rebuffed, he considered purging the Department of Justice in order to install a lackey who would bring lawsuits based on lies to invalidate election results in enough states for Trump to claim victory. He ultimately did not go through with this plan.
Instead, he summoned his supporters to Washington for a rally on Jan. 6, the day Congress would open, count and certify the electoral college results. He lied to them again by saying that Vice President Mike Pence, as the President of the Senate, had the sole power to invalidate electoral college certificates and count others backing Trump. And then when they were gathered by the White House, he told them to march on the Capitol as the electoral college certification proceedings were underway.
“[Y]ou’ll never take back your country with weakness,” he said. “You have to show strength and be strong.”
As he exhorted his supporters to march on Congress, they replied, “Storm the Capitol!” Chants of “Fight for Trump!” erupted as they overran Capitol Police officers on the steps of the Capitol. The insurrection that followed resulted in the deaths of five people, including a Capitol Police officer, and dozens of police officers injured. Many of the insurrectionists stated at the time and upon arrest that they stormed the Capitol because Trump told them to do so.
In short, Trump sought to overturn an election loss, first through lying about his loss and the fairness of the election; second, by abusing his power to cajole and threaten state election officials to overturn the election; and third, by directing a violent mob to attack the Capitol to stop the certification of the election results that was happening at that moment.
These actions occurred because Trump’s time in office was running out. He had lost the election, but the extended lame-duck period from November to January enabled him to attempt to overturn the election result and install himself in office as an unelected ruler. Stating that he cannot be impeached because he committed these acts so close to his departure from office looks like a greenlight for any future president to try this again.
During the debate in Belknap’s trial on whether or not the Senate had jurisdiction, Sen. Thomas Norwood, a Democrat from Georgia, noted such a situation as the absurd logic of forbidding late impeachments.
If the authors of the Constitution intended to forbid late impeachment then, Norwood said, “it would seem that the people of the United States, instead of devising a wise and certain and speedy method of getting rid of public offenders and remaining rid of them, and making examples of them as a terror to evil-doers in high places, were engaged in a game of thimble-rigging with the most dangerous of all criminals, and permitting the criminals to play the game.”
Removal itself doesn’t right the wrong, Norwood argued: “The offender is removed, out of office, and cannot be disqualified, cannot be impeached, even though as President of the United States he had committed treason!”
The Senate now has the opportunity to determine whether the Constitution permits such acts to go unpunished or not.
This article originally appeared on HuffPost and has been updated.