Trial for a Former President?

Does the U.S. Senate have the authority to hold an impeachment trial for former President Donald Trump? Good faith arguments have been advanced by both sides in this growing debate, which invites close scrutiny of the scope of the Senate’s power under the Impeachment Clause. As with many constitutional controversies, resolution is aided by logic, common sense and history.

Roughly 45 Republican Senators and various legal scholars maintain that the Senate’s authority under Article I, Section 3 of the Constitution to “try all Impeachments,” does not apply to Trump, now that he is a former president. The argument is that the principal question in an impeachment trial is whether to convict and remove a sitting president. That question has been rendered moot by the expiration of Trump’s term of office. In any case, the Senate may not try a private citizen.

The more compelling constitutional argument, however, is that advanced by Senate Democrats and a large body of bi-partisan legal scholars, which asserts that the Senate’s trial authority extends to former officials.

The authority of the Senate to try cases of impeachment represents a “continuation” of the process initiated by the House of Representatives’ conclusion that Trump had committed an impeachable offense when he incited a mob of insurrectionists to attack the U.S. Capitol. Trump’s incitement fell into the category of “high crimes and misdemeanors.”

Once the Senate has received articles of impeachment from the House, its broad discretionary power encompasses a range of options. It may decide to convict or acquit the defendant and, in the event of a conviction, conduct an additional vote on the question of whether the defendant should be forever barred or “disqualified” from holding office or trust under the authority of the United States.

The Senate’s constitutional authority may not be thwarted by a presidential resignation from office before the trial begins. If that were the case, a president might resign mere hours before the trial commenced for the purpose of escaping judgment and accountability. The strategy of obstruction –through- resignation, would enable the president to escape the full implications of the impeachment power, which the framers of the Constitution characterized as “the grand inquest of the nation,” a solemn and perhaps indispensable means of uncovering great offenses against the country.

By the same reasoning, would we dare say that a former official, impeached by the House and on trial in the Senate, could escape judgment and accountability if the intrusion of a natural disaster-- a pandemic, for example— prevented the Senate from convening and thus completing the trial before the official’s term expired? Who could say, with a straight face, that the Senate would be precluded from finishing its business when circumstances permitted the safe return of Senators?

The derailment of a constitutional process conceived by the framers of the Constitution as fundamentally important to the rule of law and the safety of the nation by either a cynical tactic of resign-to-escape, or the temporary delay of trial caused by a public health crisis, would reduce the trumpet sound of the rule of law to that of tinkling crystal.

The end of Donald Trump’s term of office does not mark the end of the Senate’s power to try him on charges of impeachment. The integrity of the impeachment process enjoys the same protection as that constitutionally afforded a court of law to fully exercise its judicial power and dispose of the cases and controversies brought before it.

The forthcoming impeachment trial of former President Trump is not the first time that the Senate has held an impeachment trial of a former official. In 1876, Secretary of War William Belknap resigned shortly before the House voted to impeach him. The Senate concluded that it did, in fact, possess the authority to try Belknap, despite the fact that he was, by that point, a former executive branch official. Although Belknap was acquitted of the charges against him, the fact that the trial was conducted constitutes an important constitutional understanding of the law of impeachment by the first branch of government.

The Belknap precedent, the logic of the impeachment power and its critical role in maintaining executive accountability and republican governance, lead us to the conclusion that a former president may be tried by the Senate.

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David Adler would love to hear from you!

Email him at NDWTPColumn@gmail.com with any questions or comments you have.

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David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.