Threading the needle
Trump incited a riot at the United States Capitol on January 6 that left five people dead and endangered the life of the Vice President and every member of Congress. On the one hand, Senate Republicans do not want to defend Trump's conduct. On the other hand, Senate Republicans don't want to convict Trump of "incitement of insurrection" because Trump remains a popular figure among the GOP base.
So Senate Republicans are in a tough spot. But many of them think they have figured out a way to thread the needle. Then-Majority Leader Mitch McConnell (R-KY) refused to bring the Senate back in session after the House impeached Trump on January 13. Now a chorus of Republicans are saying it's too late.
"[T]he Senate under its rules and precedents cannot start and conclude a fair trial before the president leaves office next week. Under these circumstances, the Senate lacks constitutional authority to conduct impeachment proceedings against a former president," Senator Tom Cotton (R-AR) said in a statement.
"Impeaching a president after leaving office, I think, is unconstitutional. It’s never been done before for a reason: it sets up a never-ending retribution," Senator Lindsay Graham (R-SC) told reporters last week. Trump was impeached before leaving office. But Graham was arguing that a Senate trial would now be unconstitutional because Trump is now a former president. Senator Roger Marshall (R-KS) agrees.
We'll likely hear a lot more of this in advance of the February 9 Senate trial. It solves a political problem for a lot of Senate Republicans. But is this legal argument correct? The text of the Constitution, the history of impeachment, and common sense suggest that it is not.
Trump can be convicted even though he's no longer in office.
What the Constitution says about impeaching and convicting a former President
The most influential voice arguing that a Senate trial to convict Trump would be unconstitutional is former federal judge William Luttig. The Wall Street Journal reports that "several Republicans have consulted with Mr. Luttig" about the constitutionality of a Senate trial.
Luttig laid out his views in a January 12 column in the Washington Post. Luttig can't cite a judicial opinion stating that a former president can't be convicted by the Senate, because there is none. So he relies on his own analysis of the text of the Constitution. Here is the thrust of Luttig's argument:
The very concept of constitutional impeachment presupposes the impeachment, conviction and removal of a president who is, at the time of his impeachment, an incumbent in the office from which he is removed. Indeed, that was the purpose of the impeachment power, to remove from office a president or other “civil official” before he could further harm the nation from the office he then occupies.
The plain text of the Constitution’s several Impeachment Clauses confirms this understanding of this limit on Congress’ impeachment power. For example, Article II, Section 4 of the Constitution reads, “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.” In the same constitutional vein, Article I, Section 3 provides in relevant part: “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.”
There is something very odd about Luttig's argument, however. Luttig says that the "plain text" confirms that a former president can't be convicted by the Senate. But nowhere in the text is impeachment or conviction limited to current office holders. It would have been easy enough for the framers to have included such a limitation. But they did not.
Luttig claims that the impeachment power is based on the desire to "remove from office a president or other 'civil official' before he could further harm the nation from the office he then occupies." But the remedies in the Constitutional text exceed that. Upon conviction, the Senate could disqualify Trump from holding future office. Clearly, the framers were not just concerned with removal but preventing former office holders who engaged in "high Crimes and Misdemeanors" from holding office again.
Trump also wasn't impeached as a former president. Even Luttig would not argue that the House's January 13 impeachment was invalid. So is the Senate entitled to conduct a trial based on Trump's impeachment, now that Trump is no longer in office?
The answer is clear from the text of Article I, Section 3, Clause 6: "The Senate shall have the sole Power to try all Impeachments." The Senate does not have the power to try impeachments, so long as the president is still in office. Nor is the Senate required to try impeachments at a certain time. Rather, the Senate is empowered by the plain text of the Constitution to try all impeachments, including Trump's impeachment.
The history of impeachment and trials after an official leaves office
Another reason we know Trump can have a trial in the Senate even though he's no longer in office: It's happened before.
It's true that no president has been impeached after leaving office. But in 1876 War Secretary William Belknap awarded a "lucrative military trading post at Fort Sill in Indian territory" to an associate of "a wheeler-dealer named Caleb Marsh." In return, "the associate funneled thousands of dollars to Marsh, who provided Belknap regular quarterly payments totaling over $20,000." The kickbacks paid for Belknap's "extravagant Washington parties and his elegantly attired first and second wives."
After a House committee uncovered proof of Belknap's corruption it launched an impeachment proceeding. But "just minutes before the House of Representatives was scheduled to vote on articles of impeachment, Belknap raced to the White House, handed Grant his resignation, and burst into tears." The resignation did not stop the House, which impeached Belknap or the Senate, which held a trial more than a month after Belknap's resignation. A majority of the Senate found Belknap guilty but it fell short of the two-thirds required for a conviction.
Allowing a president to avoid conviction for impeachable acts just because they occurred near the end of the term is illogical. It "makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions," law professor Michael J. Gerhardt wrote in Just Security.
Allowing a president to avoid conviction based on the timing of the offense would violate the "core principle of the Constitution," Gerhardt argues. Namely that "no one, not even the president, is above the law, and an abuse of power, by definition, is a violation of the Constitution, the supreme law of the land."
The experts weigh in
There are a few legal experts, like Luttig, that claim a Senate trial would be unconstitutional. But they are a distinct minority. A recent report by the non-partisan Congressional Research Service (CRS) found that "most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office." Among other things, "a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office."