The Washington PostDemocracy Dies in Darkness

Opinion Yes, the Senate has the power to try Trump. He was impeached in office.

House impeachment managers deliver an article of impeachment against former president Donald Trump to the Senate in Washington, D.C., on Jan. 25. (Melina Mara/Pool/Reuters)

Michael W. McConnell is the Richard and Frances Mallery professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. He is the author, most recently, of “The President Who Would Not Be King: Executive Power under the Constitution” and served on the U.S. Court of Appeals for the 10th Circuit from 2002-2009. Ken Gormley is president of Duquesne University and a constitutional scholar. He is editor of “The Presidents and the Constitution: A Living History.”

As the Senate prepares for the impeachment trial of Donald Trump, many Republican senators argue that the case should be dismissed because the Constitution does not permit the impeachment and trial of a president after leaving office. As constitutional scholars with different partisan affiliations, we both believe that is incorrect. Moreover, we reject the argument that this would open the door to impeaching past presidents or other former officials.

Trump’s impeachment by the House of Representatives, seven days before he left office, was unquestionably valid. The only question is whether, now that he is back in private life, he may be tried by the Senate. The Constitution provides a clear answer, giving the Senate “sole Power to try all Impeachments.” The key word is “all.” The Senate’s authority explicitly extends to every constitutionally proper impeachment.

Concerns that trying Trump would set a dangerous precedent for launching impeachments of past officers, even going back many years, confuse impeachment with the trial of an impeachment. The Constitution gives the House authority to impeach the “President, Vice President, and all civil Officers of the United States.” It doesn’t expressly say they are the only persons subject to impeachment, but the best reading, under established principles of legal interpretation, is that the list is exclusive, and that the House therefore cannot initiate impeachment proceedings against former officers.

Thus, the concern that trying Trump would empower Congress to go back and harass former presidents and others long out of office is unfounded. However, there are at least three historical examples in which, once the impeachment process had begun in the House, a trial proceeded in the Senate even after the official had resigned or otherwise left office.

Other constitutional objections to trying Trump are similarly flawed. Some have argued that the provision that the “Senate has sole Power to try all Impeachments” does not really mean that the Senate may try all impeachments but only that no other body has such power. That does not seem a natural reading of the language, but even if it were so, there is still no clause that bars the Senate from trying any impeachment that was itself permissible, which this one was.

Some scholars have pointed to historical practice both in Britain and in the first century of the republic under which the lower house would enact a resolution authorizing its managers to go to the upper house and “impeach” the officer. Under this practice, the impeachment technically might not occur when the House votes to pass the impeachment resolution but when the managers perform the second task of taking the articles of impeachment to the Senate. In Trump’s case, the House managers did not convey the impeachment to the Senate until after Trump left office.

We don’t think this establishes a constitutional rule. The document gives the House “the sole Power of Impeachment.” This indicates that, as a constitutional matter, impeachment must be an act of the House. The House acted by passing a resolution of impeachment. Moreover, whatever may have been the significance of the decision of early Houses to empower their managers to “impeach” an officer before the Senate, that has not been the practice since 1912. On Jan. 13, the House passed a resolution stating that Trump “is impeached for high crimes and misdemeanors.” The House has control over its own procedures; it determined that Trump was impeached as of Jan. 13.

Finally, some have argued that the constitutional clause providing that “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” implies that any consequence of conviction must consist of both removal and disqualification from future office — which could happen only in the case of sitting officers.

That is not what the clause says. It says the judgment may not “extend further” than these two sanctions. It does not say that both sanctions must be imposed in every case. Indeed, most convictions over the years involved only one: removal from office.

These questions have particular practical import when a president or high-level official commits an impeachable offense late in his or her term. Because of the exigencies of the calendar, such an officer might escape the sanctions that the framers created simply by running out the clock and slipping out of office before the Senate can try the impeachment. That would remove a significant disincentive to misbehavior in office. We should not impute that miscalculation to the framers.

The constitutionality of a Senate trial on Trump’s impeachment is not seriously in doubt.

Read more:

Read a letter in response to this piece: What an acquittal of Mr. Trump would mean

Jennifer Rubin: Trump’s pathetic defense reminds us why conviction is needed

Max Boot: Trump is far worse than Marjorie Taylor Greene. Yet the GOP still won’t renounce him.

Gary Abernathy: You can disavow Trump without apologizing for his presidency

Ruth Marcus: Trump’s Senate impeachment trial won’t be a waste of time

William P. Marshall: Trump’s second impeachment succeeded. But a Senate trial could backfire.