Photographer: Chip Somodevilla / Getty Images
Photographer: Chip Somodevilla / Getty Images
Donald Trump’s second impeachment trial will be the first to extend beyond the president’s time, creating a new legal issue that could ultimately require the Supreme Court ruling.
The answer is unresolved, but the story has bad news for Trump: a sparse but consistent line of lower-level accusations in the past suggests the Senate retains the power to prosecute him even after it’s over. his mandate. If convicted, the Senate could hold a second ballot to prevent him from running for office again.
A good number of legal scholars claim that those responsible for the Constitution had no intention of releasing presidents in the waning days of their legislatures so that they could commit serious crimes without consequences.
“The wording of the story, the practice of removal, and basic constitutional design clearly point in favor of the constitutionality of judging a former president,” said Kate Shaw, a professor of constitutional law at Cardozo Law School.
Donald Trump leaves the White House for Texas on January 12th.
Photographer: Drew Angerer / Getty Images
He The Constitution does not explicitly state whether a trial may be held in the Senate after a president leaves office. Article II, section 4, states that the president and other officers “shall be removed from office” if convicted. Article I, section 3, states that Senate appeals are limited to dismissal and disqualification from holding office in the future.
But the context in which the Constitution was written provides some clues. The Constitutional Convention of 1787 took place when the British Parliament was in the process of prosecuting and prosecuting William Hastings, the former Governor General of India.
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And practice since then suggests a broad understanding that the Senate retains jurisdiction, according to Brian Kalt, a professor of Michigan State University College of Law and author of an article on the revision of the 2001 law on so-called late dismissals.
“In many cases, the The House and Senate have acted as if they could prosecute and judge people who have already left office, and in one case, the Senate voted specifically in that regard, ”Kalt said.
Congress first invoked the power of destitution in 1797, when the House accused Senator William Blount of conspiring to let the British take control of the Spanish-controlled territories of Florida and Louisiana. The Senate held a trial even though it had already expelled Blount. The senators eventually acquitted him on separate grounds that he was not an “officer” subject to the removal clause.
In 1876, the Senate voted between 37 and 29 that it had authority to try former Secretary of War William Belknap, even though he had resigned just as the House was ready to accuse him of accepting setbacks. The Senate ended up acquitting Belknap.
In several cases since then, including the case of former U.S. District Judge Samuel Kent in 2009, lawmakers have said the official’s resignation did not affect the Senate’s right to a trial, Kalt and Professor of Law at the University of Missouri Frank Bowman wrote this week in the Washington Post.
Judge’s view
A prominent federal appellate court judge, J. Michael Luttig, argued this week that the Senate cannot judge Trump after he leaves office. Luttig wrote in the Washington Post that the purpose of the impeachment clause was to prevent an official from using a government position to cause further harm to the nation.
“The very concept of constitutional removal presupposes the removal, conviction, and removal of a president who is, at the time of his removal, the holder of the office from which he is removed,” Luttig wrote. But he added that history offers “some support” for the argument that the Senate can hold a trial after Trump leaves office.
Luttig, who was a shortlisted candidate in the Supreme Court when Republican George W. Bush was president, recently informed Vice President Mike Pence that he had no authority to change the election result during the vote-counting session in Congress. , according to the New York Times.
Judiciary
Gregg Nunziata, former Republican attorney for the The Senate Judiciary Committee tweeted Wednesday that “some Luttig judges are being deceived by some conservatives.”
“The power of dismissal includes the power to disqualify for life,” Nunziata added. “If the incumbents could simply resign to evade this major punishment, that would be null and void.”
Regardless of the merits, it is unclear whether the Supreme Court will even consider Trump a challenge to Senate authority. In 1993 the court he said it was a “political issue” – and therefore beyond the jurisdiction of the courts – when an accused judge opposed the use of a Senate committee to hear evidence as part of his trial.
Noting the granting of constitutional authority to the Senate to “judge” impeachments, the court said the term “lacks sufficient precision to allow for any judicially manageable review rule.”
Trump could counter by pointing to a 1969 decision that allowed Rep. Adam Clayton Powell Jr. to challenge the House’s refusal to seat him. This struggle focused on the constitutional provision that allows the House and Senate to judge the “qualifications” of its members.
The Supreme Court said the doctrine of the political question did not apply because the case did not require “only an interpretation of the Constitution.”