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

FILE – A COVID-19 vaccine being prepared. (Olivia Sullivan/Sound Publishing)
B.C. seniors 80 years and older to get COVID vaccine details over next 2 weeks: Henry

Province is expanding vaccine workforce as officials ramp up age-based rollout

Drivers who ignored a speed reader board were pulled over by police in Langley on Feb. 18. (ICBC)
Ignore a speed reader board, get a ticket: some Langley drivers didn’t take the hint

One driver ticketed last week was doing close to double the posted limit

Surrey Mounties says they seized a luxury car, drugs and cash in Newton. (Photo: Surrey RCMP)
Surrey gang cops seize Alfa Romeo Stelvio, drugs and cash in Newton

This happened in the neighbourhood of 121A Street and 85A Avenue on Feb. 20

Surrey RCMP are looking for information about a hit-and-run on Feb. 13 that they say involved this black BMW sedan. (Photo: Surrey RCMP)
Police search for owner of car after woman hit while walking on sidewalk in Surrey

RCMP say black BMW sedan drove up onto sidewalk and hit pedestrian in Newton on Feb. 13

Members of the public will have a chance to learn about a proposal for three buildings ranging in height from 12 to 24 storeys in Semiahmoo Town Centre. A second virtual information meeting is scheduled for today (Feb. 25) and full details are also available at www.aplinmartin.com/semiahmoo. (First Capital photo rendering)
Public voice concerns about Semiahmoo highrises during virtual meeting

Proposed development could be delayed by ‘marketing philosophy’

Dr. Bonnie Henry leaves the podium after a news conference at the legislature in Victoria on Friday, January 22, 2021. THE CANADIAN PRESS/Chad Hipolito
B.C. reports 559 new cases of COVID-19, one death

4,677 cases of the virus remain active in the province; 238 people are in hospital

Vancouver Canucks left wing Antoine Roussel (26) tries to get a shot past Edmonton Oilers goaltender Mike Smith (41) during second period NHL action in Vancouver, Tuesday, Feb. 23, 2021. THE CANADIAN PRESS/Jonathan Hayward
Canucks cough up 3-0 lead, fall 4-3 to visiting Edmonton Oilers

Vancouver falls to 8-13-2 on the NHL season

Jessica McCallum-Miller receives her signed oath of office from city chief administrative officer Heather Avison on Nov. 5, 2018 after being elected to Terrace City Council. McCallum-Miller resigned on Feb. 22, 2021, saying she felt unsupported and unheard by council. (Black Press Media File Photo)
Terrace’s 1st Indigenous councillor resigns citing ‘systemic and internalized racism,’ sexism

McCallum-Miller said in a Facebook post she felt unheard and unsupported by council

Temporary changes to allow for wholesale pricing for the hospitality industry were implemented June 2020 and set to expire March 31.	(Pixabay photo)
Pubs, restaurants to pay wholesale prices on liquor permanently in COVID-recovery

Pre-pandemic, restaurateurs and tourism operators paid full retail price on most liquor purchases

Wade Dyck with Luna, a dog who went missing near the Chasm for 17 days following a rollover on Feb. 5. (Photo submitted).
Dog missing for 17 days through cold snap reunited with owner in northern B.C.

Family ecstatic to have the Pyrenees-Shepherd cross back home.

Quesnel RCMP confirmed they are investigating a residential break-in at a home on the Barkerville Highway. (File image)
Thieves make off with $300K in Cariboo miner’s retirement gold

Tim Klemen is offering a reward for the return of his gold

Ghislaine Maxwell was arrested in New Hampshire. Image: The Canadian Press
Epstein associate Ghislaine Maxwell makes third attempt at bail on sex charges

Maxwell claims she will renounce her U.K. and French citizenships if freed

THE CANADIAN PRESS/Sean Kilpatrick
Feds agree people with mental illness should have access to MAID — in 2 years

This is one of a number of changes to Bill C-7 proposed by the government

Most Read