Let the trial begin
AIN WASHINGTON POST s the Senate prepares for the impeachment trial of Donald Trump, many Republican senators argue that the case should be dismissed because the Constitution does not permit the impeachment and trial of a president after leaving office. As constitutional scholars with different partisan affiliations, we both believe that is incorrect.
Trump’s impeachment by the House of Representatives, seven days before he left office, was unquestionably valid. The only question is whether, now that he is back in private life, he may be tried by the Senate.
The Constitution provides a clear answer, giving the Senate “sole Power to try all Impeachments.” The key word is “all.” The Senate’s authority explicitly extends to every constitutionally proper impeachment.
Concerns that trying Trump would set a dangerous precedent for launching impeachments of past officers, even going back many years, confuse impeachment with the trial of an impeachment. The Constitution gives the House authority to impeach the “President, Vice President, and all civil Officers of the United States.” It doesn’t expressly say they are the only persons subject to impeachment, but the best reading, under established principles of legal interpretation, is that the list is exclusive, and that the House therefore cannot initiate impeachment proceedings against former officers.
Thus, the concern that trying Trump would empower Congress to go back and harass former presidents and others long out of office is unfounded. However, there are at least three historical examples in which, once the impeachment process had begun in the House, a trial proceeded in the Senate even after the official had resigned or otherwise left office. Some have argued that the constitutional clause providing that “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” implies that any consequence of conviction must consist of both removal and disqualification from future office—which could happen only in the case of sitting officers.
That is not what the clause says. It says the judgment may not “extend further” than these two sanctions. It does not say that both sanctions must be imposed in every case.
These questions have particular practical import when a president or high-level official commits an impeachable offense late in his or her term. Because of the exigencies of the calendar, such an officer might escape the sanctions that the Framers created simply by running out the clock and slipping out of office before the Senate can try the impeachment.
That would remove a significant disincentive to misbehavior in office. We should not impute that miscalculation to the Framers.
The constitutionality of a Senate trial on Trump’s impeachment is not seriously in doubt. Michael McConnell is the Richard and Mallery professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution and served on the U.S. Court of Appeals for the 10th Circuit from 2002-2009. Ken Gormley is president of Duquesne University and a constitutional scholar.