- The open arguments by the Senate for the Trump impeachment trial are scheduled to begin the week of February 8.
- This would be the second impeachment of former President Trump.
- This impeachment trial will be a historical first of trying a former president who left office due to not being reelected for a second term. Many Republicans contend this impeachment trial is unconstitutional. However, others disagree with this assessment.
The House voted 232-197 to impeach outgoing President Donald Trump. This would be the second impeachment of former President Trump and the fourth impeachment of a president in U.S. history. The House impeached President Trump for “willful incitement of an insurrection” stemming from the January 6 Capitol riot.
The open arguments by the Senate are scheduled to begin the week of February 8.
This would be the first time a former president will face impeachment charges after leaving office. Many Senate Republicans argue this impeachment trial is unconstitutional.
Past Impeachment Trials
Under Article II, Section 4 of the Constitution, Congress can impeach and remove the President from Office. However, President Trump is no longer in office as his term ended on January 20.
Back during the Reconstruction era, war secretary William Belknap was impeached in 1876 for corruption charged with “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.” On March 2, 1876, just minutes before the House was scheduled to vote on impeachment articles, Belknap resigned from office. Despite his resignation, the Senate argued it “retained impeachment jurisdiction over former government officials.”
President Richard Nixon was impeached by the House but resigned before his impeachment trial. If it were not for President Nixon to resign from office, the impeachment trial would have been during his tenure as president. He left office on August 9, 1974, during the impeachment process and did not face impeachment by the full House or a Senate trial. President Gerald Ford would later pardon Nixon on all crimes related to the Watergate scandal.
In conducting a cursory review, there is no historical precedent of a situation where the Senate was trying a former sitting president whose term ended and did not resign the office. However, many contend that the Belknap trial created the necessary precedent to try former President Trump.
Can Congress Hold an Impeachment Trial of a Former President?
Some Republicans have argued that a former president can’t be the target of an impeachment trial. In a statement released to the press, Sen. Tom Cotton (R-Ark) argued, “The Senate lacks constitutional authority to conduct impeachment proceedings against a former president.”
Additionally, former federal appeals Judge J. Michael Luttig asserts that the Constitution does not allow a former president to be tried for impeachment. He goes on to argue in a Washington Post article,
“Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment. Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not after that convict the former president and disqualify him under the Constitution from future public office.”
However, the University of Texas School of Law, Stephen Vladeck, disagrees with Luttig’s assessment asserting there is indeed precedent to try Trump. He cites the Belknap case created two precedents: “Congress can impeach and remove former officers, but the fact that the defendant is no longer in office is one factor that senators may take into account in deciding whether to vote to convict.”
Affirming Vladeck’s position, albeit indirectly, a bipartisan group of more than 150 legal scholars, including members of the conservative Federalist Society, agree the “Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”
The Senate could argue Congress’s jurisdiction does not end when a former president leaves office and that this impeachment trial is constitutional. It remains to be seen, but the attorneys for former President Trump could argue this impeachment trial is politically driven, unconstitutional, and the allegations are unfounded. Nevertheless, Democrats would need the support of at least 17 Senate Republicans to convict Trump, a difficult task to achieve under the current circumstances of a divided senate.
Why this matters
This impeachment trial will be a historical first of trying a former president who left office due to not being reelected for a second term. Many Republicans contend this impeachment trial is unconstitutional. However, others disagree with this assessment.
Interestingly enough, Senate Democrats are floating the idea of evoking the 14th Amendment to prevent Trump from holding public office in the foreseeable future. Section 3 of the 14th Amendment states no public official who has taken the oath to the Constitution may hold office who “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
If the Senate convicts Trump with the charge of “willful incitement of an insurrection,” he will be barred from running for president again. However, his conviction for the alleged incitement of the Capitol riot remains to be seen.
If the impeachment trial of former President Trump proceeds, it’s uncertain if there will be enough Senate votes to convict in a 50-50 divided Senate. A recent report coming from the Associated Press claims a growing number of GOP senators say they oppose holding the impeachment trial, which could indicate a dimming chance that former President Trump could be convicted.
Our country is deeply divided and the impeachment trial of former President Trump could further this divide.
Mike Price is the founder and Managing Editor of ThinkCivics. He holds a BA in political science and a master’s degree in public administration from Northern Kentucky University. He has been writing about politics, government, and culture for over a decade. When he is not writing about politics, he writes about his faith over on his Christian men’s blog Joshua’s Outpost. Follow him on Twitter at @MPriceMPA or contact him at firstname.lastname@example.org