Second Impeachment Explained

Democracy Docket,

Last Monday, the U.S. House of Representatives sent its articles of impeachment to the Senate, formally charging former President Donald Trump with “incitement of insurrection.” While this is the second time Trump was impeached in just over a year, this impeachment will be unlike any other in history: the trial will take place after the indicted president has already left office.

So what does an impeachment trial look like for a former president? Let’s answer a few of your most frequently asked questions:

Didn’t the House already vote on the impeachment? What is the Senate voting on?

Impeachment is actually a two-step process. First, the House impeaches by formally drafting and voting on the articles of impeachment. From there, impeachment proceeds as a trial, with a committee of congressmen acting as the prosecutors in front of the Senate who sit as jurors. The Senate will make the final vote, requiring a two-thirds majority to convict. Oral arguments for Trump’s second impeachment will start next Tuesday, February 9. If convicted, the Senate would then take another vote, only requiring a simple majority, to prevent Trump from holding elected office in the future.

What’s the point of impeaching a president who already left office?

There are two main reasons to impeach Trump, even if he already left office. The first is to uphold norms and promote accountability. Following the horrific insurrection encouraged by Trump on January 6, House Democrats—and even 10 Republicans—voted to impeach. Those who support impeachment argue that allowing a president to commit crimes shortly before they leave office without fear of punishment allows them to avoid any accountability.

The second reason to continue with impeachment is because of an often-overlooked aspect of conviction. The judgement of an impeachment trial not only removes the convicted president from office, it also disqualifies them from holding “any Office of honor, Trust or Profit under the United States.” Impeaching an official even after they have left office provides a fundamental element to conviction: protecting the republic from people who will abuse their power.

Can Congress impeach a former president?

The short answer is, yes. Trump was impeached by the House while in office. While there is some limited debate on the topic, the overwhelming consensus among Constitutional scholars supports the Senate’s ability to conduct this trial. As the Congressional Research Service reported, “If impeachment does not apply to former officials, then Congress could never bar an official from holding office in the future as long as that individual resigns first.” Despite the academic consensus on the question—and Trump’s own preference that they focus on election fraud—whether the Senate can legally convict a former president will likely be the heart of the defense’s argument.

Has a former president ever been impeached after they left office?

No, the House and Senate have never impeached or tried a former president. However, the House has impeached a member of the executive branch after he had already resigned from office. In 1876, the Secretary of War, William Belknap, was impeached by the House hours after he had resigned. In the subsequent Senate trial, Secretary Belknap’s defense argued that because he was now a private citizen, the Senate lacked the authority to convict him. The Senate took this question to a vote, where they ultimately decided he was impeachable for his acts as Secretary. While two-thirds of the Senate did not vote to convict, the precedent for allowing impeachment proceedings to continue after an official leaves office still stands to this day.

Still have an impeachment question? Ask Marc your questions about impeachment here

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