A Senate Trial After Trump Leaves Office Would Be Unconstitutional
Updated: Jan 24, 2021
The U.S. House of Representatives on Wednesday impeached President Donald Trump for a
second time, saying his behavior before the U.S. Capitol riots last week amounts to “incitement of insurrection.”
The House quickly approved the impeachment article, but a Senate trial isn’t expected to be as speedy. The Senate is unlikely to begin a trial before returning to session Jan. 19, a day before the inauguration of President-elect Joe Biden. That means that the trial would drag on after Trump leaves office.
Legal experts are divided on the constitutionality of a Senate trial after Trump leaves office, which could prevent Trump from holding office in the future, wrote Debra Cassens Weiss for the ABA Journal online.
Some argue that constitutional impeachment clauses don’t envision a late trial, while others say the Constitution doesn’t specifically address timing and doesn’t ban a late trial, noted Ms. Cassens Weiss.
The House impeached Trump by a vote of 232-197, with 10 Republicans voting to impeach, according to a count by the New York Times.
The article of impeachment, in its final version, makes the case that Trump’s false statements about election fraud and his address to supporters Jan. 6 foreseeably resulted in the crowd’s lawless action at the Capitol. His statements to the crowd included, “If you don’t fight like hell, you’re not going to have a country anymore.”
The impeachment article also says Trump tried to obstruct the election results, partly by a call in which he asked Georgia’s secretary of state to “find” the votes that Trump needed to win the state.
Among the most persuasive advocates on the anti-post-service impeachment side is former Fourth Circuit Court of Appeals Judge J. Michael Luttig, who made the case against a Senate trial after Trump leaves office in an op-ed for the Washington Post, cited by Ms. Cassens Weiss.
“Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment,” Luttig wrote in the Washington Post.
Luttig argued that the Constitution’s impeachment clauses presuppose that impeachment and removal of a president happen while in office.
As an example, he cited Article II, Section 4, which reads, “The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”
He also cited Article I, Section 3, which reads in part: “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.”
We find Judge Luttig’s argument persuasive, especially in light of Article I, Section 9, Clause 3 of the Constitution which states: “No Bill of Attainder or ex post facto Law shall be passed.”
The Framers of the Constitution were well aware of acts of the British Parliament that deprived those who were politically out of favor of life and property.
J. Story in Commentaries on the Constitution of the United States (1833), defined Bills of attainder as such special acts of the legislature, “as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.”
The Supreme Court, in Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); and United States v. Brown, 381 U.S. 437, 441–442 (1965) held the phrase “bill of attainder,” as used in this clause and in clause 1 of § 10, applies to bills of pains and penalties as well as to the traditional bills of attainder.
Further the Court held in United States v. Brown, that the prohibition embodied in this clause is not to be narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, which would violate the separation of powers.
And in United States v. Lovett, 328 U.S. 303, 315 (1946), the Supreme Court held the clause thus prohibits all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial…”
In short, it is our view, a view well-founded in history and constitutional law, that Congress may impeach President Donald Trump, but when he leaves office he becomes Citizen Donald Trump, and Congress cannot through its legislative power, deprive Citizen Donald Trump of his rights or property, including the right to run for and hold public office.
Hat tips to the Cornell Law School Legal Information Institute and constitutioncenter.org
incitement of insurrection
ex post facto laws
bills of attainder