Back in 2001, I wrote a long law review article exploring an abstract question: Can Congress impeach and try ex-officials for their misconduct in office? The issue of what I labeled “late impeachment” was just a hypothetical back then. It was still only a hypothetical when I wrote a book on weird presidential constitutional issues in 2012 and included a chapter on impeaching ex-presidents. Then last month … well, you know.
When it became clear that Donald Trump’s impeachment trial would not begin until after his term ended, I knew my old work would come in handy for both the House managers and Trump’s lawyers. I had concluded in my article that, on balance, the evidence solidly favored late impeachability. But late impeachment is a complicated issue, with a lot of evidence and arguments on both sides and my article tried to present all of it (it ended up being 124 pages long).
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The Senate Republican conference is staying united in the impeachment trial, barring a handful of exceptions. Most Republicans have signaled that they won’t vote to convict former President Donald Trump, while only a few have indicated an openness to considering it.
During a vote on the constitutionality of the proceedings a few weeks ago, five Republican senators joined Democrats to affirm that they believed the trial should be allowed to move forward. Those lawmakers Sens. Mitt Romney (R-UT), Susan Collins (R-ME), Lisa Murkowski (R-AK), Pat Toomey (R-PA), and Ben Sasse (R-NE) are seen as the most likely to potentially support conviction. Sen. Bill Cassidy (R-LA) joined them in another vote on the constitutionality question at the start of the trial Tuesday, saying afterward he was unimpressed by the Trump team’s arguments.
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No one knows whether the Constitution permits the Senate to hold an impeachment trial for former President Donald Trump, now that he no longer holds office.
To be sure, there is a bevy of legal scholarship discussing this question. And, as a recent report by the nonpartisan Congressional Research Service notes, “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.”
But while the Constitution mentions impeachment six times, the text of the document provides little clarity on whether the Senate’s power to try an impeached official terminates when that official leaves office.
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