Could Trump Face Impeachment Trial After Leaving Office? 7 Things to Know
Democrats want to impeach President Donald Trump for a second time, but they’ll have to hurry — even to get a simple majority vote in the House of Representatives.
The goal of a second impeachment would be to disqualify Trump from holding office again. Or, more to the point, prevent him from running for president in 2024.
Here are seven things to know as impeachment moves forward, again.
1. When Would Impeachment Happen?
It appears likely that the Democrat-controlled House would impeach Trump before he leaves office but deliver the article or articles of impeachment to the Senate after President-elect Joe Biden takes office. This could reportedly happen as early as Wednesday.
House Democrats introduced one article of impeachment Monday, charging the president with “incitement of insurrection.”
In a public statement, the three Democrats said:
Last Wednesday marked one of the darkest days in the history of our country. After months of agitation and propaganda against the results of the 2020 election, the United States Capitol — the citadel of our democracy — was attacked as President Trump’s supporters attempted to stage a coup and overturn the results of our free and fair presidential election. We cannot allow this unprecedented provocation to go unanswered. Everyone involved in this assault must be held accountable, beginning with the man most responsible for it — President Donald Trump. We cannot begin to heal the soul of this country without first delivering swift justice to all its enemies — foreign and domestic.
The House Judiciary Committee could expedite the matter without a hearing and pass articles of impeachment with a party-line vote, as it did in late 2019.
House Speaker Nancy Pelosi, D-Calif., has said she would bring a vote on impeachment to the House floor if Vice President Mike Pence didn’t convene the Cabinet to remove Trump under the 25th Amendment to the Constitution.
Most constitutional legal scholars say the 25th Amendment wouldn’t be applicable in this case because it was meant for circumstances when a president is incapacitated.
House Majority Leader Steny Hoyer, D-Md., said he would bring up Raskin’s proposal to form a 25th Amendment Commission to evaluate the physical and mental fitness of the president for continuity of government. The congressional commission still would have to work with the vice president.
Pelosi tweeted Monday that the House would vote on the 25th Amendment legislation, and if this did not succeed, “As our next step, we will move forward with bringing impeachment legislation to the Floor.”
As our next step, we will move forward with bringing impeachment legislation to the Floor. https://t.co/Gand0JGkO2
— Nancy Pelosi (@SpeakerPelosi) January 11, 2021
It requires only a simple majority in the House to approve articles of impeachment. However, it requires a two-thirds majority in the Senate, after a trial, to remove a president from office.
In late 2019 and early 2020, Trump — like Presidents Bill Clinton in 1998 and Andrew Johnson in 1868 — was impeached in the House and acquitted by the Senate.
Those previous impeachments of presidents, as well as impeachments of judges, had a goal in mind, said Thomas Jipping, former chief counsel for the Senate Judiciary Committee, who was involved in the impeachment trial of a federal judge in 2010.
“It is supposed to be the first step in the removal of a public official from office,” Jipping, deputy director of the Mees Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal. “What is the point of removing someone from office who doesn’t occupy that office?”
An ABC News poll found 56% want Trump to leave office before the end of his term.
2. How Would Disqualification Work?
Trump and some supporters have indicated he would run again for president in the 2024 race.
But the Senate could vote to disqualify Trump from holding any future federal office.
Article I, Section 3, Clause 7 of the Constitution says that if a federal official is convicted in an impeachment trial, “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.”
Unlike removal from office, the Senate needs only a simple majority to disqualify someone from holding office. However, a two-thirds vote for removal must first occur before moving forward to the disqualification vote.
“The Senate trial would require a two-thirds votes on removal, after that, the next step would be further sanction, mainly prohibiting him from holding office again,” Michael Lawlor, an associate professor of criminal justice at the University of New Haven, told The Daily Signal.
Lawlor helped lead the impeachment effort against a Connecticut governor.
“They could potentially strip [Trump] of a presidential pension, Secret Service protection and a presidential stipend,” he said.
Lawlor, a Democrat, was chairman of the Connecticut Legislature’s House Judiciary Committee and a member of the House impeachment committee investigating then-Gov. John G. Rowland, a Republican, in 2004. In that case, Rowland resigned and the House took no further action.
3. When Would Senate Hold a Trial?
Senate rules say an impeachment trial must begin at 1 p.m. the day after the Senate receives the article or articles of impeachment from those chosen to be the House impeachment managers.
So, the earliest a trial could start would be when the Senate is back in session, which Jan. 20. That’s the day of Biden’s inauguration as president.
However, Senate Democrat Leader Charles Schumer, D-N.Y., reportedly will seek the support of Senate Republican Leader Mitch McConnell, R-Ky., to use a 2004 Senate rule to allow the leaders to recall the Senate into emergency session before Jan. 20.
Per a senior Dem aide: "Schumer is exploring using the authority granted to the two Senate leaders in 2004 to reconvene the Senate in times of emergency, to allow for a potential trial to begin immediately after articles of impeachment are sent to the Senate."
— Jonathan Swan (@jonathanvswan) January 11, 2021
But the second Senate trial of Trump could happen more than three months later.
House Majority Whip James Clyburn, D-S.C., said Sunday that the House could take up impeachment this week, but hold off on delivering articles of impeachment to the Senate until after 100 days into Biden’s term.
The reason would be to prevent a distraction from Biden’s legislative agenda, Clyburn said.
An impeachment at this point would be almost entirely political theater, presidential historian Craig Shirley says.
“This would be a sequel to a bad movie,” Shirley told The Daily Signal, adding: “Even for Democrats, Trump is good for ratings; whether someone has a good, bad, or indifferent view of Trump, he draws attention.”
4. Could the Senate Disqualify Trump From Future Office?
Once all the senators are seated for an impeachment trial, to convict Trump would require 17 Republican senators to vote with all Senate Democrats.
Again, the Senate could not move to a simple majority vote to disqualify Trump from holding office unless it already had a vote of two-thirds or more to convict the president.
To put it one way, a conviction requires a supermajority of 67 out of 100 senators. A sentencing would require only 51 votes.
After Georgia Democrats Raphael Warnock and Jon Ossoff take office, the Senate will be split 50-50 between Republicans and Democrats. And once sworn in as Biden’s vice president, Kamala Harris, in her role as president of the Senate, will give the Democrats a majority in case of tie votes.
Many Senate Republicans — including Ben Sasse of Nebraska, Pat Toomey of Pennsylvania, and Lisa Murkowski of Alaska — expressed strong disapproval of some of Trump’s remarks to supporters in a rally before the Capitol riot. But reaching 17 Republican votes to convict would be difficult, particularly if Trump already is out of office.
Given the slim chance of a conviction, impeachment after Trump leaves office would be largely a political move, Jipping said.
“They want him to leave office as bruised and roughed up as possible, and sullied in the eyes of the public,” Jipping said. “The point would be to inflict as much damage politically as possible.”
But there is a path to convicting Trump, Lawlor said. If Trump or his associates were aware that rhetoric at the rally was a signal to riot at the Capitol, he said, Republican senators likely would get on board.
“I’m not sure it’s that unlikely,” Lawlor said, adding:
It depends on what we find out over the next few weeks. Was there some collusion with the folks at the Capitol? Republicans might say, it was really that bad. … If there is evidence this was an intended outcome, if Trump — aside from maybe being a cheerleader — knew this would happen, more Republicans would vote to convict.
5. What Happens If Trump Pardons Himself?
Whether a president can pardon himself never has been tested, though Trump reportedly is considering the move.
The Constitution’s pardon clause provides that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
So, a pardon would shield Trump from prosecution at the federal level, but it would have no effect on Congress’s power to impeach and remove him.
A pardon also wouldn’t prevent Trump from being prosecuted at the state level. New York Attorney General Letitia James has targeted Trump, long a New York-based developer and businessman.
“For a president to pardon himself would give the appearance a president of the United States is completely above the law,” Lawlor said. “It would be tested in the Supreme Court. It’s like a law school debate of nightmare scenarios.”
Constitutional scholars argue about the topic, Shirley said.
He said it will take time for emotions to cool and temperatures to lower to assess Trump’s presidency and accomplishments such as record economic growth, Middle East treaties, and successful development of vaccines to fight COVID-19.
“He didn’t end his presidency well,” Shirley said. “He had a good story to tell as a one-term president. It would have been a good story to tell for a two-term president. But you can’t judge the Trump presidency without judging his character. It’s not just accomplishments. It’s also character.”
6. What Other Impeached Officials Were Disqualified?
Out of 15 federal judges impeached in U.S. history, eight were removed from office. The Senate voted to disqualify three of those eight judges from holding federal office again.
In 1862, Judge West H. Humphreys of the Western District of Tennessee was the first judge to be impeached, convicted, removed, and disqualified from holding future office.
Humphreys stands out for being found guilty of “waging war on the U.S. government” during the Civil War.
The other two judges prohibited from holding office again had been charged with corruption: Judge Robert W. Archibold of the U.S. Commerce Court in 1912, and Judge Thomas Porteus of the Eastern District of Louisiana in 2010.
The most notable federal judge to be impeached by the House and removed by the Senate but not disqualified from holding future office was Judge Alcee Hastings of the Southern District of Florida. In 1988, the House charged Hastings with perjury and soliciting a bribe.
After he was acquitted in a later criminal trial, Hastings ran for Congress in 1992 and won. He continues to represent Florida’s 20th Congressional District.
7. What Usually Happens When an Impeached Official Is Out of Office?
The House in 1876 impeached a Cabinet secretary after he had left office. The Senate acquitted him in a trial.
In the most recent example, the Senate in 2010 dropped a trial for a federal judge who had resigned.
Judge Samuel Kent of the Southern District of Texas was accused of sexual misconduct in August 2008. Kent pleaded not guilty to five related charges.
The next month, he pleaded guilty in a criminal court to obstruction of justice in connection with making false statements to a special investigative committee of the U.S. Court of Appeals for the 5th Circuit.
The guilty plea to obstruction allowed Kent to avoid prosecution on the other charges. As part of the plea, though, the judge admitted to engaging in nonconsensual sexual contact with two court employees. He was sentenced to 33 months.
A special House investigative committee to explore impeachment, chaired by Rep. Adam Schiff, D-Calif, who would go on to lead the impeachment of Trump, began hearings with Kent’s alleged victims on June 2, 2009.
Kent had announced that he would resign in a year — on June 1, 2010, which would have allowed him to continue collecting his salary for a year. Kent reported to prison on June 15, 2009.
The House on June 9 recommended four articles of impeachment against Kent. The House Judiciary Committee unanimously approved the articles and sent the articles to the House floor the next day.
On June 19, the full House approved two articles of impeachment related to sexual assault, one for obstruction of justice and another for providing false statements to the FBI.
The Senate trial began June 24 with Sen. Claire McCaskill, D-Mo., as chairwoman and Sen. Mel Martinez, R-Fla., as vice chairman of the specially appointed Senate Impeachment Trial Committee. The same committee handled the trial of Porteus.
On June 25, when Senate staffers traveled to a prison to present Kent with a summons to testify, the judge gave them a handwritten resignation note. This time the resignation was effective June 30, 2009.
The House then passed a resolution, HR 661, to end the Kent proceeding, and the Senate special committee took no further action on Kent.
“There would have been no point in moving forward with a vote to remove him from office because he already quit,” Jipping said. “After HR 661, there was no reason to pursue any further.”
Another example, in the executive branch, goes back to the scandal-plagued War Secretary William Belknap of the Grant administration. In 1876, a House investigation found evidence that Belknap took part in kickbacks and other corruption involving a military vendor that paid $20,000 to the war secretary.
On March 2, 1876, Belknap resigned from office just minutes before the House was scheduled to impeach him. The Democrat-controlled House nevertheless approved five articles of impeachment, including one accusing Belknap of “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
The fact that Belknap no longer held office didn’t prevent the Republican-controlled Senate from holding a trial. On Aug. 1, 1876, a Senate majority voted in favor of all five articles of impeachment against Belknap — well short of the two-thirds required to convict.
The former war secretary was acquitted and never prosecuted.
Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump. Send an email to Fred.
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