President Donald Trump speaks to the media before boarding Marine One on the South Lawn of the White House, Tuesday, Jan. 12, 2021 in Washington. The President is traveling to Texas. (AP Photo/Gerald Herbert)

President Donald Trump speaks to the media before boarding Marine One on the South Lawn of the White House, Tuesday, Jan. 12, 2021 in Washington. The President is traveling to Texas. (AP Photo/Gerald Herbert)

EXPLAINER: Can Trump be impeached after leaving office?

Some questions and answers about whether a former president can be impeached

President Donald Trump might argue the calendar is his friend when it comes to a second impeachment trial.

Trump’s impeachment last week by the House of Representatives for his role in inciting the riot at the U.S. Capitol set up his trial in the Senate. But there’s one potential wrinkle.

In 2019, the last time Trump found himself impeached by the House, he had nearly a year left in his presidency. But on Wednesday, with the inauguration of Joe Biden, Trump will be out of office by the time any Senate trial gets started.

Some Republican lawmakers argue it’s not constitutional to hold an impeachment trial for a former president, but that view is far from unanimous. Democrats for their part appear ready to move forward with a trial.

On Tuesday, Sen. Joni Ernst, R-Iowa, said she doesn’t think a post-presidency impeachment trial is constitutional. But Sen. John Cornyn, R-Texas, wasn’t so sure.

“I think there’s serious questions about it,” he said.

Connecticut Democrat Richard Blumenthal, meanwhile, said it was “bogus” that a trial after Trump leaves office wouldn’t be constitutional, noting that the Senate has held impeachment trials of federal judges after they’ve resigned.

“So whether somebody resigns, or runs out the clock it makes no difference. They can still be held accountable and there’s nothing in the spirit, or the letter of the impeachment provisions in the Constitution that argues against it,” he said.

Some questions and answers about whether a former president can be impeached.

WHY IS THIS OPEN TO DEBATE?

The Constitution says: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

But the Constitution says nothing about the impeachment of a former president. The question has also never come up. The only other two presidents to be impeached, Bill Clinton and Andrew Johnson, were tried while still in office.

READ MORE: Trump expected to issue flurry of pardons on last full day

WHAT DO SCHOLARS AND HISTORY HAVE TO SAY ON THE TOPIC?

A recent Congressional Research Service report for federal lawmakers and their staffs concluded that while the Constitution’s text is “open to debate,” it appears most scholars agree that a president can be impeached after leaving office. One argument is that state constitutions that predate the U.S. Constitution allowed impeachment after officials left office. The Constitution’s drafters also did not specifically bar the practice.

Still, the text of the Constitution could be read to suggest impeachment only applies to current office holders. In the early 19th century, one influential Supreme Court justice, Joseph Story came to that conclusion.

One powerful suggestion that post-office trial is acceptable, however, comes from history. The Congressional Research Service report cites the 1876 impeachment of Secretary of War William Belknap. Belknap resigned over allegations he received kickbacks. The House impeached him after his resignation, and while Belknap objected to being tried in the Senate because he’d left office, the Senate heard three days of arguments on the topic and then deliberated in secret for over two weeks before concluding Belknap could be tried. He was ultimately acquitted.

COULD TRUMP CHALLENGE A CONVICTION?

Courts are unlikely to want to wade into any dispute over impeachment. In 1993, in a case involving an impeached former judge, the Supreme Court ruled it had no role to play in impeachment disputes because the Constitution says the “Senate shall have sole Power to try any impeachments.”

DOES AN IMPEACHMENT TRIAL OF A FORMER PRESIDENT PRESENT OTHER LEGAL ISSUES?

One other issue is who would preside at the impeachment trial of an ex-president. The Constitution says it’s the chief justice’s job to preside at the impeachment trial of a president. But scholars offer differing views about whether that’s Chief Justice John Roberts’ job if Trump’s trial begins after he’s out of office.

The choices for who would preside appear to be Roberts, Kamala Harris, who by then will be vice-president, or Sen. Patrick Leahy, D-Vt., who will be the Senate’s president pro tem once the Democrats take control of the Senate.

WHAT’S THE POINT OF IMPEACHING SOMEONE WHO IS OUT OF OFFICE?

The consequence the Constitution sets up for a president who is impeached and convicted is removal from office. That’s not really a concern for a former president. Still, conviction would send a message about Trump’s conduct. Moreover, if the Senate were to convict, lawmakers would presumably take a separate vote on whether to disqualify Trump from holding future office. Some lawmakers believe that’s appropriate.

“We need to set a precedent that the severest offence ever committed by a president will be met by the severest remedy provided by the Constitution — impeachment and conviction by this chamber, as well as disbarment from future office,” incoming Senate majority leader Chuck Schumer, D-NY, said Tuesday.

___

Associated Press reporter Mary Clare Jalonick contributed to this report.

Jessica Gresko, The Associated Press


Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

Donald Trump

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A nurse performs a test on a patient at a drive-in COVID-19 clinic in Montreal, on Wednesday, October 21, 2020. THE CANADIAN PRESS/Paul Chiasson
Interior Health reports 16 new COVID-19 cases

423 cases remain active in the region

The incident happened in downtown Castlegar. Photo: Betsy Kline
Castlegar teen recounts stabbing after stranger breaks into grandmother’s house

The unnamed teen survived a terrifying attack Feb. 21

.
Seven weeks with no new COVID-19 cases in Castlegar

The latest localized BCDCD COVID-19 numbers

A man wearing a mask against coronavirus walks past an NHS advertisement about COVID-19 in London, Tuesday, Feb. 2, 2021. (AP Photo/Alastair Grant)
92 new COVID-19 cases, no new deaths: Interior Health

The region is reporting 92 cases after the weekend

Island Health chief medical officer Dr. Richard Stanwick receives a first dose of Pfizer vaccine, Dec. 22, 2020. (B.C. government)
COVID-19: B.C. seniors aged 90+ can start to sign up for vaccination on March 8

Long-term care residents protected by shots already given

The area on Cordova Bay Road where ancestral human remains were discovered Feb. 22. (Submitted photo)
Human remains discovery a reminder of B.C. Indigenous culture dug up and displaced

‘These are the people who inspired and birthed the generations that we now have here’

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Older rental apartments are prime candidates for renovations, and could result in lost affordable housing stock. (Zoë Ducklow photo)
B.C.’s renoviction overhaul a good start, but won’t preserve affordable stock, lawyer says

And still no protection for people who can’t pay rent due to COVID-19

(Photo by Marissa Baecker/Shoot the Breeze)
B.C. WHL teams to hit the ice with Kelowna, Kamloops hub cities

Kelowna, Kamloops centres chosen to host B.C. WHL teams for 24-game regular season

The machines are akin to ATMs and allow drug users at risk of overdose to get hydromorphone pills dispensed to them after their palm has been scanned to identify its unique vein pattern. (CANADIAN PRESS)
Feds dole out $3.5M for ‘vending machines’ to dispense safer opioids in B.C.

The machines are located in four cities across Canada, including Vancouver and Victoria

Kelowna’s lakefront visitor centre is one of 130 around the province. Tourism businesses have been hardest hit by COVID-19 restrictions on travel. (Destination B.C.)
Tourism, small business getting COVID-19 help, B.C. minister says

$300M grant program has delivered $50 million so far

(Black Press file photo)
Agassiz boy, 11, dies from ‘extensive injuries’: Homicide team

Agassiz RCMP were called out Friday to assist with a child in medical distress

Most Read