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

Some of the folks behind Angel Flight East Kootenay: Todd Weselake is a director, partner and pilot while Brent Bidston is the president and lead pilot of the not-for-profit. Pictured here with their older plane, they hope to get an upgrade for thanks to RDEK funding. (Image courtesy of Angel Flight East Kootenay)
Angel Flight secures RDEK funding for next five years

$100,000 will go to the not-for-profit each year, with the funds to be used to acquire a larger plane

Ryan Bavin of Bavin Glassworks in Invermere. Photo: Submitted
Call for entries for Columbia Basin Culture Tour

Deadline for registration for artists and venues is April 15

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
36 new cases of COVID-19, one death in Interior Health

The number of active cases in the region is at 366

Michelle Thorne of Fernie Distillers with some Griz-themed cocktails available for Griz Days 2021. (Scott Tibballs / The Free Press)
Griz Days comes to town

While mostly virtual, there’s Griz-themed food and drink around town

Kootenay-Columbia MP Rob Morrison. File photo
COMMON’S CORNER: Challenging the government on vaccine availability and more

The first of a quarterly column from Kootenay-Columbia MP Rob Morrison

Provincial health officer Dr. Bonnie Henry updates B.C. on the COVID-19 situation. (B.C. government)
Dr. Bonnie Henry predicts a ‘post-pandemic world’ for B.C. this summer

‘Extending this second dose provides very high real-world protection to more people, sooner’

The Netflix logo on an iPhone. B.C. delayed imposing sales tax on digital services and sweetened carbonated beverages as part of its response to COVID-19. Those taxes take effect April 1, 2021. THE CANADIAN PRESS/AP, Matt Rourke
B.C. applies 7% sales tax on streaming, vaping, sweet drinks April 1

Measures from 2020 budget were delayed due to COVID-19

Chief Don Tom of the Tsartlip First Nation was outraged after Green MLA Adam Olsen revealed on social media that the community had been experiencing a COVID-19 outbreak – a fact the First Nation had chosen to keep private to avoid racist backlash as experienced by the Cowichan Tribes when an outbreak was declared there in January. (Black Press Media file photo)
B.C. First Nation ‘outraged’ after Green MLA reveals COVID-19 outbreak

Tsartlip First Nation chief shares concerns about racist backlash, MLA apologizes

A lawyer wears a face mask and gloves to curb the spread of COVID-19 while waiting to enter B.C. Supreme Court, in Vancouver, B.C., Friday, Aug. 28, 2020. British Columbia’s highest court has sided with the land owner in a dispute over public access to public land. THE CANADIAN PRESS/Darryl Dyck
B.C. high court finds in favour of large landowner in fight over access to pair of lakes

The Nicola Valley Fish and Game Club launched legal action after the cattle company blocked road and trail access

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

Prime Minister Justin Trudeau holds a press conference in Ottawa Friday, March 5, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Trudeau holds firm on premiers’ health-care funding demands, COVID-19 aid comes first

Premiers argue that the current amount doesn’t keep pace with yearly cost increases of about five per cent

Free Reformed Church is seen as people attend service, in Chilliwack, B.C., on Sunday, Feb. 21, 2021. Lawyers for the British Columbia government and the Justice Centre for Constitutional Freedoms are back in B.C. Supreme Court today, squaring off over the legality of COVID-19 rules that prohibit in-person religious services. THE CANADIAN PRESS/Darryl Dyck
B.C. top doctor has power to restrict access to a place during health hazard: lawyer

Under B.C.’s Public Health Act, Jacqueline Hughes says, Henry can restrict or prevent entry to a place

A vial of some of the first 500,000 of the two million Oxford-AstraZeneca COVID-19 vaccine doses that Canada has secured through a deal with the Serum Institute of India in partnership with Verity Pharma at a facility in Milton, Ont., on Wednesday, March 3, 2021. THE CANADIAN PRESS/Carlos Osorio - POOL
B.C. dentists and bus drivers want newly-approved Oxford-AstraZeneca vaccine

BC Dental Association says dentists and their teams cannot treat patients remotely

Surrey Pretrial in Newton. (Photo: Tom Zytaruk)
B.C. transgender inmate to get human rights hearing after being held in mostly male jail

B.C. Human Rights Tribunal member Amber Prince on March 3 dismissed the pretrial’s application to have Makayla Sandve’s complaint dismissed

Most Read