Can the Senate Try a Former President? This is, of course, the most fundamental question. While Trump was president when the House impeached him (and still is for a few more hours), his term will have ended by the time the Senate trial begins. Trump and his supporters (as well as some legal scholars) argue that this precludes further proceedings because impeachment applies only to “[t]he President, Vice President and all civil Officers of the United States,” and Trump will no longer be any of these on January 20. Other legal scholars, such as Professors Keith Whittington and Steve Vladeck, argue that the constitutional text does not expressly limit impeachment to current officeholders and the constitutional purpose, structure, history and precedent support “late impeachments,” that is, impeachments and/or trials of former officeholders for high crimes and misdemeanors relating to their time in office.
In the heat of the current moment it may be difficult to reach an objective answer to this question, which has long been debated in Congress and the legal academy. So it is helpful to review the past scholarship on this issue, which was written at a time when there were no immediate political stakes involved. CRS has a good summary of the arguments on both sides and notes that “[a]lthough the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” Similarly, Professor Gerhardt has noted a “surprising consensus” among legal experts “that resignation does not necessarily preclude impeachment and disqualification.” Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 79 (1996). Professor Kalt’s 2001 article, likely the most comprehensive treatment of this subject, finds that while “late impeachability is a close and unsettled question,” the better view is that “Congress can pursue late impeachments, based on analysis of the text, structure, historical underpinnings, and precedents of the Constitution’s impeachment provisions.” Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, at 3 (Oct. 24, 2001). And for what it’s worth I tend to agree. See Could Congress Impeach Judge Bybee?, Point of Order (Apr. 20, 2009) (“Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power.”).
It should be noted here that the facts of the current situation seem like they were dreamed up as a hypothetical to support late impeachments. Trump did not commit (or at least complete) the alleged impeachable offense until January 6, when there were barely two weeks remaining in his term. It would have been virtually impossible to impeach and convict within this time frame. Even if the trial had commenced while Trump was still president, it would be extremely difficult to complete before noon on January 20. Attempting to compress the trial within the available time would mean short changing the House managers and/or the defense in terms of presenting their cases, and would give the defense an incentive to delay as much as possible in order to run out the clock. It seems borderline absurd to read the Constitution as imposing such artificial limitations on a trial of the gravity and consequence described by Alexander Hamilton in Federalist No. 65, which can subject the offender “to a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country.”
Furthermore, if there were ever presidential conduct which warranted the imposition of the constitutional penalty of disqualification from future office, it is that with which Trump is charged. Professor Chafetz has argued that the paradigmatic case of impeachable conduct is an effort to illegally use presidential power to entrench oneself in office. See Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347, 422 (2010). Trump’s (alleged) effort to overturn the election results by falsely claiming fraud, pressuring state election officials to change the results, and inciting a violent mob to disrupt the electoral vote count in Congress goes far beyond anything any president has been accused of in this regard. Yet under the anti-late impeachment theory, there would be no way of disqualifying a president who engaged in such behavior as a last-ditch effort to hold on to power. Trump would be free to seek the presidency in the future and use exactly the same tactics again. To interpret the Constitution to require this result makes very little sense.
Who Presides at the Impeachment Trial of a Former President? The Constitution provides that “[w]hen the President is tried, the Chief Justice shall preside.” Does this requirement apply to the trial of a former president?
Professor Baude has a good analysis of this issue here. He points out that the last time there was an impeachment trial of a former official (ex-Secretary of War William Belknap in 1876) two arguments were made in favor of late impeachments. One is what we just discussed, namely that impeachable officials remain subject to impeachment and disqualification even after they leave office so long as the offense “relates back” to the office they held. The other is that anyone could be impeached, and that the Constitution’s reference to impeachable officials is only for the purpose of prescribing a particular punishment (removal) that must be imposed in such cases.
If the latter were correct, then presumably Trump could be impeached in his capacity as a private citizen and there would be no need for the chief justice to preside. However, the “relating back” theory is a far stronger argument and the basis of all of the scholarship discussed above. This does not necessarily mean that the chief justice must preside, but it tends to support that conclusion. The issue is murky, but in my view the appropriate course would be to ask the chief justice to preside.
From the standpoint of the House managers, this raises something of a tactical dilemma. If the chief justice does not preside, it creates the risk that Trump could later attack the verdict as improper or use the chief justice’s absence as evidence that the “relating back” theory is wrong. On the other hand, if the chief justice is asked to preside, there is some risk that he would decline (see below), which would undermine the House’s position. It might therefore be in the interest of the House managers not to request that the chief justice preside but also not object if the defense makes this request. That way if Trump does not object to a different presiding officer (whether it be the vice president or the president pro team), it will be difficult for him to attack the process at a later date.
Who Decides Who Presides? If the Senate decides, either on its own or at the request of one of the parties, to request the chief justice’s presence, is the chief justice obligated to preside? It seems to me that the answer is no. If the Constitution does not (in his view) require him to preside at the trial of a former president, it seems to me that Chief Justice Roberts would be within his rights to decline. He might believe that it is improper or unconstitutional for the chief justice to preside over an impeachment trial except in the specific instance (the trial of a sitting president) specified by the Constitution.
It is certainly possible that Roberts would not raise this issue sua sponte, but would only address it if one of the parties objected. It is also possible that he would defer to the Senate’s judgment on the matter even if one of the parties did object. It is not obvious to me, however, why the Senate’s judgment should control on an issue of what the chief justice’s responsibilities are.
It is unlikely, but not impossible, that Roberts could address the issue of whether a former official can be tried at all. In other words, he could decline to preside on the ground that a former official is not subject to impeachment, and therefore there is no trial at which he could constitutionally preside. It seems far more likely, however, that he would assume, without deciding, that a former official could be tried.
(In theory, Roberts could also decide to preside and then rule on a motion to dismiss for lack of jurisdiction. Based on how deferential to the Senate he was while presiding over Trump’s first impeachment trial, however, this seems even less likely.)
Can Trump Challenge the Trial in Court? It is extremely unlikely that Trump could convince any court to interfere with the Senate’s conduct of the trial while it is ongoing. Among other reasons, any attempt to sue or enjoin the Senate would be barred by the Speech or Debate Clause.
A different situation would be presented once Trump was convicted by the Senate. If Trump loses benefits (e.g., his pension), he could sue the United States or whatever official(s) are responsible for providing these benefits to former presidents. This was how former United States District Judge Walter Nixon challenged his impeachment (hat tip: Ira Goldman). Such a suit would not be barred by the Speech or Debate Clause.
Professor Vladeck argues, however, that judicial review of the Senate’s verdict would be precluded by the Supreme Court’s decision in Judge Nixon’s lawsuit, in which it held that his challenge to the procedures followed by the Senate in his impeachment trial constituted a nonjusticiable political question. Chief Justice Rehnquist’s opinion in that case emphasizes that the judiciary was intended to have no role in impeachments. See Nixon v. United States, 506 U.S. 224 (1993).
It is not at all clear, however, that the Nixon case governs the question whether former officeholders may be impeached or convicted. That is a straightforward legal question of the kind found to be justiciable in Powell v. McCormack, 395 U.S. 486 (1969), which held that the question of what “qualifications” were subject to the House’s power to judge the qualifications of its members was justiciable. Unlike the question of what constitutes a proper impeachment trial, which involves discretionary judgments lacking judicially discoverable and manageable standards, the issue of late impeachability presents a yes or no question susceptible of judicial resolution.
Would Trump’s Disqualification be Judicially Reviewable? Assuming that for some reason Trump did not or could not challenge the Senate’s verdict based on loss of pension or benefits, he could also seek to challenge his disqualification (assuming the Senate imposes disqualification) in court. Presumably such an issue would not be ripe for judicial review unless and until Trump sought to attain an office from which the disqualification purported to bar him.
Most likely, this would arise in the context of a 2024 presidential bid. If, for example, state officials refused to put Trump’s name on the ballot, either for the primary or general election, he could sue to obtain ballot access, arguing that his disqualification was invalid because the Senate lacked jurisdiction over him as a former president. This would present the same justiciability issue discussed above and, for the reasons indicated, I think the courts probably would review Trump’s claim on the merits.
In addition, Trump could argue that the Senate’s judgment of disqualification, even if valid, does not prevent him from holding the office of president because that office is not an “Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause. This, of course, is the Tillman/Blackman theory we have discussed many times (see, e.g., my last post) and it seems to me that proposition would be clearly justiciable since it merely involves interpreting the meaning of the constitutional disqualification that the Senate imposed.
It is, however, still very, very wrong.