The first day of former President Trump’s second impeachment trial on Tuesday is likely to be dominated by a question that has sharply divided Republicans and legal scholars: whether Congress’s impeachment power extends to former presidents.
In pretrial briefs, Trump’s lawyers argued that the Senate’s jurisdiction over Trump ended when he left the White House and resumed life as a private citizen, and they are expected to make this claim central to Trump’s defense.
Many Senate Republicans may ultimately cite this purported constitutional barrier as their main reason for voting to acquit Trump for his alleged incitement of insurrection over his role in the Jan. 6 breach of the Capitol.
There is disagreement among scholars over the constitutional question that is a key argument for Trump’s legal team, though most legal experts, including some prominent conservative lawyers, say the Framers had a broad conception of the impeachment power’s reach.
“The overwhelming number of constitutional scholars say the trial is constitutional,” said Frank Bowman III, a University of Missouri law professor and author of a recent book on impeachment. “A tiny number of outliers disagree.”
According to Bowman, the Constitution’s text and original understanding, as well as precedent and practical considerations, all cut in favor of reading the impeachment power as capable of applying to former officeholders, particularly those who were impeached while in office and tried later as private citizens.
Bowman and more than 170 other legal scholars last month signed a letter to make the case that Trump’s upcoming trial is constitutionally sound.
The roster of signatories was notable not only for its legal firepower but also its ideological diversity. The letter brought together leading liberal voices like Harvard law professor Laurence Tribe, an outspoken Trump critic, as well as libertarian and conservative scholars like Steven Calabresi, who co-founded the Federalist Society.
“We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation,” the Jan. 21 letter reads. “But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”
Other top conservative lawyers have spoken out independently to express their view that the most natural reading of the Constitution compels the conclusion that former presidents can be tried for high crimes and misdemeanors.
Charles Cooper, an ally of top Republican lawmakers, penned a Wall Street Journal opinion piece on Sunday defending the constitutionality of the upcoming trial. His main argument was that the Framers laid out a sequence of possible punishments for impeachment that would only make sense if this power could be applied to former officeholders.
A current officeholder is automatically removed from office the instant they are convicted by a two-thirds vote in the Senate. After removal, the Senate may then hold a vote on whether to disqualify that person from holding office in the future, which requires a simple majority.
Under Cooper’s reasoning, the only people who could possibly be subject to a disqualification vote are former officeholders.
“Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders,” he wrote, “it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.”
Trump’s lawyers are expected to mount a broader defense of the former president that includes attacking the factual bases and legal assertions underlying Democrats’ impeachment article.
But weeks before the trial began, Trump’s legal team received a strong signal from Senate Republicans that they view former officeholders as beyond the scope of impeachment.
In late January, 45 out of 50 GOP senators voted to support a measure by Sen. Rand Paul (R-Ky.) to dismiss the post-presidency trial on constitutional grounds. This vote suggested a two-thirds vote to convict is out of reach in Trump’s second trial since at least 17 Republicans would need to vote with all 50 Democrats to convict the former president.
Although the vote on Paul’s measure last month doesn’t bind senators’ upcoming votes at the conclusion of Trump’s trial, it offered the clearest sign yet that the former president is heading toward a second acquittal.
Senate Republicans’ narrower view of the impeachment power also enjoys some scholarly support from legal experts. Among them are Philip Bobbitt, a law professor at Columbia University; Jonathan Turley, a George Washington University law professor and contributor to The Hill; and former federal appellate judge J. Michael Luttig.
Yet this handful of prominent scholars who take the view that the upcoming trial is unconstitutional are vastly outnumbered by their counterparts who give impeachment power a broader reading, Bowman said.
No court has ever ruled on the question, but a pair of dated Senate impeachment trials offer some precedent.
The Senate tried former Secretary of War William Belknap in 1876 following his resignation; he was ultimately acquitted. An earlier example comes from the 1797 case of Sen. William Blount, who fled home to Tennessee before he was tried; his Senate trial was halted before a verdict was reached.