The Senate Should Still Convict Donald Trump

After the events of Jan. 6, in which the sitting president of the United States incited his supporters to violence and was responsible for their subsequent insurrectionist storming of the U.S. Capitol, there should be no remaining question that Donald Trump is both unfit for office and has committed impeachable offenses. The ideal path to his removal would have been for Vice President Mike Pence and more than half the cabinet to invoke the 25th Amendment, but that ship sailed. 

Since the vice president didn’t use the 25th Amendment, Congress has begun the process of impeaching and convicting Trump, with the House of Representatives voting on Jan. 13 to make Donald Trump the first president in history to have been impeached twice. The House’s action came despite the realities of the calendar: There was only a week between the impeachment and Joe Biden’s inauguration as the 46th president. There are two important points to make about this. First, even now, after Trump has left office, the Senate can try him on the article of impeachment passed by the House. And second, the Senate should do precisely that.

First, as to the “can” question. While impeachment is primarily about removal of a corrupt official from office, there is an additional purpose evident from the text of Article I, Section 3 of the Constitution of the United States: “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.” If impeachment were only about removal, the Constitution would not explicitly refer to the additional penalty of disqualification from office.

Moreover, there is precedent for exercising the impeachment power after an official has left office. In 1797, the House impeached Tennessee Sen. William Blount and the Senate convicted him even after he had already been expelled from office. And in 1876, Secretary of War William Belknap was impeached by the House and tried by the Senate (even though he was not convicted) after he had resigned. In addition, as professor emeritus at Harvard Law School Laurence Tribe has argued, the impeachment case from British law that was prominently in the minds of the framers of the Constitution involved the former colonial governor of India, Warren Hastings, who was tried on impeachment and convicted after he left office.

In a recent op-ed, former U.S. Circuit Court Judge Michael Luttig took issue with this conclusion, arguing not only that the Constitution does not permit such impeachments, but that this result is clear on the face of the Constitution. In discussing the question of whether the Senate could try Trump after he leaves office, Luttig wrote, “The Constitution itself answers this question clearly: No, he cannot be. 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.”

Unfortunately for Luttig’s argument, he offers little evidence for this “clear” conclusion. He points, of course, to Article II, Section 4 of the Constitution, 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.” The point Luttig makes is that the impeachment clause refers to “all civil officers” as the class of individuals subject to impeachment and removal, meaning that a former officer no longer falls within the terms of Article II, Section 4.

To be sure, this is not a frivolous textual argument. But, as I have already noted, it is inconsistent with historical precedent, and it is contradicted by the additional constitutional text in Article I, Section 3 that adds disqualification from future office as a penalty for conviction, since it makes impeachment meaningful for officials even after they leave office. If removal was the only consequence, then impeachments would be moot when an officer no longer holds office. But, it plainly is not moot if Congress seeks to bar the official from future office.

Less needs to be said about whether Congress should impeach and convict Donald Trump. His actions, both at the rally at which he spoke on Jan. 6, and in the weeks and days leading up to that event, made Trump directly responsible for the attempt by his supporters to use violence to not just disrupt the business of Congress, but to interrupt the specific and constitutionally-critical peaceful transfer of power. The goal of the insurrectionists was to prevent Congress from counting the electoral votes and certifying Joe Biden’s election as president. Every previous incumbent president who sought and lost reelection — from John Adams in 1800 to George H.W. Bush in 1992 — acceded to the transfer of power. Donald Trump’s refusal to do so until after the events of Jan. 6 (and, even then, grudgingly at best) constitutes a grave threat to our constitutional system and a violation of his oath of office. He constantly claimed, on Twitter, in public statements and in an endless stream of frivolous lawsuits, that the election had been “stolen,” perpetuating a lie that primed the pump for his supporters to believe that they could and should act to prevent an illegitimate president from taking office.

Finally, it is curious that some have argued that Trump’s Jan. 6 speech is not impeachable because it did not amount to incitement under the Supreme Court’s First Amendment precedents. There are two problems with this. First, the standard for what constitutes incitement (and what is protected speech under the First Amendment) is not the standard for impeachment and removal. An official — especially a president — can be held to a higher standard than avoiding criminal incitement (or any other criminal conduct, for that matter). Second, focusing solely on Trump’s Jan. 6 speech ignores the broader context surrounding his actions since the election. He didn’t just incite the mob and send them to the Capitol despite the clear danger they represented. He built up their conviction that the election had been stolen in the weeks between Nov. 7 (when Biden’s victory was declared by major media outlets) and Jan. 6, repeatedly lying in tweets, court filings and public statements. Trump maintained a constant rhetorical drumbeat that the country was at risk if an “illegitimate” president who “lost and lost badly” was inaugurated. And once the insurrectionist mob had descended on the Capitol, Trump ignored repeated pleas to publicly call for the violence to end and call up National Guard troops to defend the Congress. These are acts and failures to act that amount to the most fundamental failure to fulfill the president’s oath of office to preserve, protect and defend the Constitution, and they amply support the determination that he should be barred from seeking office again. The Senate both can, and should, act.

Sam Marcosson is a professor at the UofL Brandeis School of Law. The views expressed herein are his alone and do not speak for UofL or the School of Law.