Is the Senate trial to impeach former President Trump unconstitutional?

Senator Rand Paul and other Republicans have argued that the constitution does not give Congress permission to carry out impeachment after an official has left office.

The second impeachment trial of former President Donald Trump gets underway this week, with the trial set to begin on Tuesday, February 9. But many have wondered just how useful – or even constitutional – a second impeachment trial is.

According to article one of the United States constitution, conviction results in the president being removed from office and disqualified from holding any future office. In Trump’s case, because he has already left the White House, he would simply be prevented from holding office again.

But some discussions have opened the door for Republicans to argue not that Trump is innocent, but rather that trying him at all would be unconstitutional.

Objections to the trial

In January, Republican Senator Rand Paul forced a vote on the Senate floor over the constitutionality of moving forward with the second impeachment trial. Senator Paul argued that the constitution does not give Congress permission to carry out impeachment after an official has left office. The vote ended 55-45 in favor of continuing with the trial, with five Republican senators breaking party lines.

The clause of the constitution the senator is referring to reads, “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 …”

Regardless of whether the trial will proceed, some believe that in the wake of the 55-45 vote the ultimate result of the Senate trial is a foregone conclusion. Conviction in the Senate requires a two-thirds supermajority and if 17 Republican senators fail to vote to convict the former president (joining all 50 Democratic senators), “the whole thing’s dead on arrival,” in Senator Paul’s words.

Even Senator Susan Collins, a Republican from Maine, said she thought the trial was likely to have an expected result. “Do the math,” she said, “I think that it’s extraordinarily unlikely that [former President Trump] will be convicted.”

Acceptance of the trial

Many have rebutted Senator Paul’s position on the constitutionality of the impeachment trial, saying that current precedent supports constitutionality.

“While some provisions do appear to limit trials to current federal officials – not former presidents – other provisions of the constitution, as well as the US Supreme Court decisions and historical precedent indicate that the Senate is well within its authority to try former President Trump,” Jared Carter, a constitutional law expert from Vermont Law School, told TMS.

Carter adds that “the constitution gives the Senate power to try ‘all impeachments,’ so it would appear that since President Trump was impeached while still sitting, the Senate’s authority to try all impeachments would mean that a trial is constitutional.”

Carter is referencing a clause in the constitution that explicitly gives the Senate the sole power to try all impeachments, as well as spells out some details of the trial, including that the chief justice of the US Supreme Court presides over the trial and that two thirds of senators must be present for a conviction vote to occur.

Carter also discussed the impeachment of Secretary of War William Belknap, who was impeached and tried in the 1870s.

“Belknap resigned just before he was impeached, but the House impeached and the Senate tried him anyway.” Belknap was convicted on the grounds of corruption after having placed an associate of a man named Caleb Marsh in charge of operating a military trading post at Fort Sill in exchange for quarterly payments totaling more than US$20,000.

Carter added that impeachments don’t often get reviewed by courts, saying “The US Supreme Court has largely avoided reviewing impeachment decisions on the grounds that the Senate has specifically been delegated trial authority by the Constitution,” adding, “it is unlikely that a court will find any aspect of President Trump’s trial unconstitutional on the grounds that the Senate lacks authority.”

Many lawyers agree with Carter’s conclusion and a bipartisan group of 150 lawyers signed a letter attesting that Trump can still be tried after leaving office. Even prominent members of conservative groups like the Federalist Society signed the letter, lending credence to the claim that the argument isn’t political.

The decision is up to the Senate now, says Carter. “It completely boils down to whether 67 senators believe Trump should be convicted. Plain and simple.”

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