The question of whether former president Donald Trump can be convicted at an impeachment trial now that he has left office is likely to be settled by political muscle rather than the Constitution, which is murky on the matter and provides support for those on both sides of the issue, experts said Wednesday.
Although many legal scholars take the view that a president can be tried by the Senate even when he is no longer president, they acknowledge there is enough ambiguity in the Constitution for Republicans to embrace as reason not to convict Trump at his trial set to begin Feb. 9.
Most who have studied the question think post-presidential impeachment, conviction and disqualification from holding future office is permitted, said Brian C. Kalt, a leading scholar on the subject. But it is far from unanimous because of ambiguous language in the Constitution.
“It’s a tough call because there is so much uncertainty,” said Kalt, a Michigan State law professor.
In a lengthy 2001 law review article, Kalt concluded there is a “solid basis” because of the history, text and past practice in Congress.
“The removal requirement was a way of protecting the office from bad presidents, not a way of protecting bad presidents from impeachment for things they do right at the end of their term,” said Kalt, who helped craft a recent letter signed by more than 150 constitutional scholars, including a founder of the conservative Federalist Society.
Republicans overwhelmingly signaled their support this week for the opposite argument, advanced by Sen. Rand Paul (R-Ky.) — and backed by former federal judge J. Michael Luttig — that there is no constitutional basis for putting a former president on trial. All but five Republican senators backed Paul’s objections.
They also point to Chief Justice John G. Roberts Jr.’s absence as the presiding officer at the trial as supporting evidence that the impeachment is inappropriate. Roberts oversaw Trump’s first impeachment, but has declined to comment on why he is not presiding over the coming trial.
Democrats and others say that has nothing to do with the bigger question of whether Trump must be held accountable for fomenting the Jan. 6 attack on the Capitol that resulted in the deaths of one police officer and four rioters.
The relevant section of the Constitution states that 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.” Separately, it says, “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.”
Although it makes clear that the Senate’s punishment cannot go beyond removal or disqualification, the Constitution does not say anything about the timing of a trial.
Among those leading the arguments on both sides are legal heavyweights Laurence Tribe, a Harvard Law School scholar, and Luttig, the former judge. The two frequently exchange emails on constitutional issues, most recently about this subject, and express great admiration for each other even when they vigorously disagree.
The Senate does not lose its power to hold an impeachment trial just because the official is no longer in office, Tribe said, in part because it has the authority to disqualify the person from holding future office. Although a powerful argument could be made that Congress cannot impeach a private citizen, he said, Trump was impeached by the House while still in office.
If an official could only be disqualified while still in office, that person could avoid accountability by resigning just before a final conviction vote in the Senate, he said.
Democrats have pointed to historical examples of the Senate holding impeachment trials for former officials, but those did not result in convictions. In 1876, Secretary of War William Belknap resigned just before the House voted to impeach him. The Senate affirmed its authority to hold a trial for the former executive branch official, but failed to get the two-thirds vote needed to convict him.
In response, Republicans have largely espoused Luttig’s view, first outlined in an opinion piece in The Washington Post before the House impeachment vote. Luttig says the Senate’s power to convict extends only to a sitting president. The purpose of the power, he wrote, is to remove a president before “he could further harm the nation from the office he then occupies.”
“The historical fact that the Congress has impeached former officers after they were no longer incumbent in their offices is evidence only that at times the Congress has assumed that it had the constitutional power to impeach former officers,” Luttig added in an interview Wednesday.
Only the Supreme Court, he said, can decide the legal question of whether Congress does in fact have that authority.
Two former solicitors general from Democratic and Republican administrations, however, said courts were not likely to settle the question of whether the impeachment trial is permissible.
The Supreme Court in a 1993 case involving the impeachment of a federal judge named Walter Nixon said that the question of whether the Senate proceedings against Nixon were proper was a “political question,” meaning it was to be resolved by the Senate, not the judiciary.
Because of that precedent, “it’s pretty clear that the Supreme Court will not get involved in these issues,” said Paul D. Clement, former solicitor general under President George W. Bush. “My strong sense is that the courts — starting with the first district court that addresses it up to the Supreme Court — will say, ‘No thank you — political question.’ ”
The two also agreed that Roberts’s absence from the second trial does not signal the chief justice’s opinion about the legality of the proceedings. Under the Constitution, the chief justice presides over a trial of “the president,” not necessarily a former president.
“I don’t think the chief is foreshadowing a view of that separate question” of the legitimacy of a post-presidency trial, Clement said. “And if he thought he were, he’d have done something different, maybe explain it in writing.”
He added: “I think the chief has just made it clear he reads that clause to mean the current president of the United States.”
At a seminar at Georgetown Law Center, Clement and Neal K. Katyal, solicitor general in the Obama administration, agreed. Katyal said he thought Roberts would have presided if the trial began before Jan. 20, and the question then would have been whether to continue.
“I 100 percent think the chief is right in not presiding over this impeachment the way it was structured,” Katyal said.