A Senate Trial on Impeachment After Pres. Trump Leaves Office is Likely Unconstitutional

AP Photo/J. Scott Applewhite

This is a subject that has been covered by several legal pundits over the past 10 days, and there are varying points of view.  I have not done a bunch of legal research on the question — time for such activity has been in somewhat short supply for a while for me.  I’m going to simply draw on the work of others with which I agree for the purpose of providing a somewhat simplified “lawsplainer” on the legal issues that surround such an effort should the Senate actually take the matter up.

Let’s address that issue first, as it is largely a political one.

The House has approved Articles of Impeachment, the mere existence of which serve the same practical function as a censure or House resolution condemning Pres. Trump for his comments and actions.  For the historical record, nothing more is really needed.

Soon-to-be-inaugurated Joe Biden has asked that any Senate impeachment trial not slow down the process of confirming individuals he has named to his cabinet.  Just when that confirmation process might start remains a bit uncertain because the precise date that Chuck Schumer becomes Majority Leader has not yet been determined.  The Senate is destined to be 50-50, but a few matters must be finalized before that happens, the most significant of which is the certification of the outcome of the two Senate runoff races in Georgia.  Until those results are certified by the Georgia Secretary of State, both Georgia Senate seats remain vacant, and the GOP still has the majority in the Senate 50-48.

But even once in the minority, the GOP can still gum-up the works of the Senate in ways that would significantly hamper the ability of the body to conduct the trial and confirmation proceedings at the same time.  The Senate functions best on the basis of “unanimous consent” to waive procedural rules that slow down Senate proceedings.  For four years the Democrats in the Senate consistently objected to “unanimous consent” requests by the GOP majority in order to prevent the Trump Administration from advancing policy matters through the Senate.  In the early months of the Trump Administration, the Democrats objected to every “unanimous consent” request in order to prevent timely confirmation of cabinet and subcabinet level nominees in the Trump Administration.  I expect one or more GOP Senators will begin returning that favor starting in 5 days.  Whether there actually is a strong desire in the Senate to conduct a trial at the expense of other work to be done remains to be seen.

As for the legalities, Jonathan Turley made a public recommendation earlier this week to President Trump and his legal team that I agree with — they should not participate in any Senate proceeding.  Not participating would preserve a later challenge to the legitimacy of the exercise.  He also covers a host of other unique problems that would infect such a proceeding, including whether the Chief Justice would participate in the trial of a private citizen which is not expressly provided for in the Constitution.

The purpose of an impeachment trial is to remove a public official from the office they hold.  “Impeachment” by the House is the functional equivalent of an “indictment” — it is the issuance of a charge of misconduct against the seated official sufficient to justify removal from office.  The “trial” in the Senate is the process for actually removing that official from office.

But what the Democrats are after is the collateral consequence of removal, which is to bar the individual from seeking the same office in the future.  What the Democrats seem to fear (maybe some NeverTrumper GOP Senators as well) is that Pres. Trump will emerge again in two years, point out the disaster that has unfolded with the Hiden/Barris Administration, say “I told you so”, and then run again in 2024.

I suspect that is HIGHLY unlikely.  But these are the fevered-nightmares of those gripped by TDS, and they want to drive a stake through that possibility by a Senate trial that would prevent such a possibility from ever becoming a reality.

Or would it?

The Senate would be conducting a trial of a private citizen, not an office-holder.  The only purpose of the trial would be to attach a prohibition to the individual’s ability to pursue office in the future.  But the Constitution prohibits legislative “bills of attainder”.

A “bill of attainder” is a legislative act that declares a person guilty of some offense and then punishes them in some fashion that usually includes some impairment of the person’s civil rights.

The Constitution sets forth the authority of Congress to impeach the President, and remove him from office if convicted by trial in the Senate.  But that is with regard to a public official — it is an exception to the otherwise universal prohibition on bills of attainder.  Once the public official leaves office, he is once again a private citizen and is protected by the prohibition on bills of attainder. Any Senate vote to remove — or more accurately a vote to impose a disability on his ability to run again in the future — is a legislative act that is intended to deprive the person of the civil right to hold office.  it is authorized against a public official, but it is not authorized against a private citizen.

Nothing prevents the Articles from Impeachment from remaining in place without the Senate acting on them.   If the circumstances arose that Pres. Trump did run again in 2024 and recaptured the White House, the Senate could then set a trial the matter for the purpose of removing him from office after re-election.

But even if the Democrats are in the Senate majority in 2024, they would need to think long and hard over the question of whether to conduct a trial to remove Donald Trump from office if he just won the election in 2024 to be returned to the White House a la Grover Cleveland (look it up).

The Democrats certainly would not want to face that choice.  Voting to remove and disqualify Pres. Trump now, even after he leaves office, might actually set up a court battle before 2024 where the constitutionality of such an effort to disqualify him as a private citizen would likely resolve the issue — if Pres. Trump chose to take up such a fight.