Arkansas Democrat-Gazette

Let the trial begin

- MICHAEL W. MCCONNELL AND KEN GORMLEY

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.

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