The Washington PostDemocracy Dies in Darkness

Opinion A Senate trial is possible after Trump leaves office

President Trump on the South Lawn of the White House on Tuesday. (Jabin Botsford/The Washington Post)

Former judge J. Michael Luttig’s opinion that the Senate cannot hold an impeachment trial after the president leaves office was an exercise in circular logic [“Once Trump leaves office, the Senate can’t hold an impeachment trial,” op-ed, Jan. 13]. As but one example: “It is a constitutional impeachment of a president that authorizes his constitutional disqualification.” Huh?

The plain language of Article I, Section 3 of the Constitution gives the Senate the ability to impose two separate and distinct penalties upon convicting an official who has been impeached by the House of Representatives: (1) “removal from Office, and [(2)] disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” The Constitution does not say that the Senate’s ability to disqualify an official from holding future office is unavailable merely because the other penalty can no longer be imposed.

Someone as devoted as the author to the primacy of the plain words in the Constitution surely knows that the relevant clause could have been written to say that disqualification could only be imposed as a penalty contingent upon removal. But it was not. The “and” in Section 3 matters.

That disqualifying behavior occurs at the very end of an official’s term is not a get-out-of-jail-free card under the text of the Constitution. Now that the president has been impeached by the House, the Senate may disqualify him from holding future public office “and” may also remove him from office if his term has not already ended.

Mike Jacobs, Washington

I thank The Post for bringing disparate views from noted scholars on whether a civil officer, including the president, can be tried under articles of impeachment after leaving office. In his Jan. 14 Thursday Opinion essay, “The Senate can act on impeachment, even after Trump leaves office,” Laurence H. Tribe effectively refuted former judge J. Michael Luttig in using both precedent and original intent to clearly demonstrate why such a proceeding withstands constitutional muster.

But even Mr. Tribe missed the one word that puts the issue to bed. That word is “all.” Article I, Section 3, Clause 6: “The Senate shall have the sole Power to try all impeachments.” Mr. Luttig’s contention that only incumbent officers can be tried is nowhere to be found in the Constitution. The word “all” belies that conclusion. The document is clear that for any valid impeachment, the Senate can sit in judgment and potentially mete out the punishment of disqualification to hold future office, regardless of whether the accused has already left his or her position.

I think we can declare “case closed” on this debate and let the trial begin.

David Fisher, Bethesda

I am at a true loss for words in trying to understand how a prominent, conservative former federal judge could argue that President Trump cannot be impeached after leaving office while acknowledging that Congress in 1797 impeached a federal officer after leaving office.

The entire idea behind originalism is that the Constitution should be interpreted and applied as originally contemplated when written. If the founding generation, who wrote the Constitution, felt it had the power to do so, who is J. Michael Luttig to disagree? 

Ian Acker, Washington

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