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Senate Can and Should Convict Trump After the 20th

3 min read

Regardless of whatever else happens in the next week, Trump’s one and only term ends at noon on January 20th. It’s in the Constitution. After that, he will be an ex-president. Because of that, some lawyers are arguing that the Senate can no longer try him, that impeachment only applies to current officials because the Constitutional penalty is “removal from office.”

Legal scholar Lawrence Tribe sees it differently:

The Senate can constitutionally hold an impeachment trial after Trump leaves office

Tribe’s main argument is that impeachment and conviction is a prospective judgment, not just a penalty for past acts. That is, it is a judgment that the officeholder has acted so unworthily of his office that Congress has determined he is unworthy to ever hold office again.

[Impeachment’s] function is prospective rather than punitive: to prevent officers who have betrayed their oaths from committing further abuses and thereby inflicting future harm.
The need to protect the nation can sometimes be satisfied merely by removing a dangerous officer from power. Still, the inclusion of a separate power to disqualify is a clear recognition that removal might not always be sufficient. For such cases, the Constitution expressly provided the additional remedy of exclusion.

If this were not the case, Tribe argues, an official could escape impeachment and its penalties merely by resigning any time before the Senate concluded its trial, and be free to run again for an office he could then misuse.

Tribe points to a case in 1797:

[I]t’s unsurprising that Congress has throughout the nation’s history considered the power to try and judge impeachments to extend past an officeholder’s term. The question was first raised during the attempted 1797 impeachment of Sen. William Blount. One of the lead House prosecutors, Rep. James Bayard and Blount’s lawyer agreed that a civil officer could not escape impeachment through resignation. President John Adams concurred, declaring that “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”

Tribe also cites the Bellknap case that Rachel Maddow led off with last night:

Likewise, in 1876, Secretary of War William Belknap resigned minutes before the House was set to impeach him; the House still transmitted five articles of impeachment to the Senate. At Belknap’s trial, the Senate voted 37 to 29 that he was “amenable to trial by impeachment …notwithstanding his resignation of said office.” And the House and Senate rules have both long permitted the impeachment and trial of former officers for abuses committed while holding office.

There are some other historical notes that will be fascinating to anyone interested in the history of impeachment.

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