This will be an historic week in the U.S. Senate, not only because of the second impeachment trial of former President Donald Trump, but also because of the debate over the very question of whether a former president can be tried after he has left office.
The House impeachment managers will argue that the Senate is within its authority while Trump’s lawyers will say they are not. The disagreement is expected, but it goes beyond the parochialism of each side.
Legal scholars are also split.
Some argue that the language of Article II, Section 4 of the Constitution specifies impeachment is for office holders. “The President, Vice President and all civil officers of the United States shall be removed from office [emphasis added] on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
How can you remove from office someone who is no longer in office?
Ross Garber, a Tulane Law School professor who has represented four U.S. governors facing impeachment, told the Washington Post that the provision’s specificity is the guiding principle. “A former office holder may not be impeached,” he said.
However, those on the other side frequently refer to Article I, Section 3 of the Constitution: “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. [emphasis added].”
Scholars argue the second part of that provision is there to ensure that office holders who have committed high crimes or misdemeanors cannot escape accountability, even if the offense occurs in the waning days of their term.
In short, there is no “January Exception.”
Akhil Reed Amar, Yale Law professor and author of “America’s Constitution: A Biography,” wrote in the Post that the provision prevents an individual from escaping punishment by resigning.
“The sentencing gavel is about to fall, and 15 second before the sentence of removal and disqualification, they say, ‘I resign,’ in order to avoid the sentence of removal and disqualification. The same concern might be true at any point in the process,” he said.
The debate can, and will, go on and on, but here is an important point to keep in mind: Impeachment is not a criminal or civil process; it is political. The House and Senate devise their own rules and the courts are reluctant to get involved.
However, what happens this week will be precedent setting. When an impeachment arises in the future, scholars, politicians and opinion leaders will refer to this week as an example of what the Constitution does and does not say.