The Impeachment Trial of Trump Should Proceed Even If He’s Out of Office

Photo by Jon Tyson on Unsplash

The House of Representatives appears to be moving forward with determination to impeach President Trump for a second time, perhaps even with bipartisan support. Many people will cry foul and say this is a waste of time because he will leave office on January 20th, but it is not.

Whenever impeachment is mentioned it is centered around the consequence of removal from office if convicted by the U.S. Senate, but that is only half of the possible outcome. The Senate is also empowered to bar the person from ever holding any office in the United States ever again. That is what is at stake now: the ability to prevent Trump from running for President in 2024. And though conviction (and removal from office) requires a two-thirds vote, after conviction a decision to bar Trump from holding future office only requires a majority.

In many ways this would be a gift to Republicans! If seventeen of them would come along to convict a President already out of office, with none of the typical consequence, then the newly minted Democratic majority can prohibit Trump from running for President again without them. Although that would ultimately be beneficial to the country, it would first pay dividends to a Republican Party that does not have to deal with him again in 2024. Better still I can already give any reluctant GOP Senator their soundbite, “I voted to convict President Trump over the deeply troubling violence at the Capitol on January 6th, I felt that was reprehensible and embarrassed us in the eyes of the world, but it was the Democrats who barred him from running again. I think he should’ve been able to make his case to voters in 2024. Yada yada yada. Kamala Harris.”

It seems predictable that Trump would sue if this happened. No doubt a keen lawyer representing Senate Democrats would point out (to the Supreme Court) that if the Senate only had the power to exercise this Constitutional prerogative while a person was in office, then they would be constrained to act within the term of office of the impeached. A term that bears no relationship to whether they would seek election again. Certainly the Constitution does not specify this power only applies to a person currently holding office. Democrats could also make the case that an accused person could then simply resign to avoid conviction and seek election again, robbing the Senate of its power to act.

If it was a criminal court, impeachment would become moot on January 20th at noon and the case would be dismissed. Fortunately it is not a moot point in our Constitution: the Senate has the power and responsibility to decide if Trump should be allowed to hold office again and that question extends beyond the moment he leaves office.

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