As House Impeaches, Sens. And Scholars Debate Trial Timing

Law360 (January 12, 2021, 9:21 PM EST) -- With the House set to impeach President Donald Trump as soon as Wednesday, lawmakers and scholars are debating when the Senate will hold a trial and vote on disqualifying him from holding office in the future — and whether the Senate can act after his term ends.

House Majority Leader Steny Hoyer, D-Md., has said the chamber will start considering an article of impeachment Wednesday, with a vote possible that day. Democrats are bypassing the typical process of committee hearings, debate and defense testimony, charging that Trump's "incitement of insurrection" demanded a fast response and that he poses a danger to democracy and national security as long as he remains president.

A Senate trial only begins after the House formally sends over an article of impeachment and appoints managers to prosecute the case. Some Democrats want to wait several months after the inauguration to let the Senate start work on the Biden administration's nominees and legislative agenda. Others want an immediate trial that could theoretically remove Trump from office a few days early.

However, Senate Majority Leader Mitch McConnell, R-Ky., has said he needs senators' unanimous consent to reconvene the chamber before Jan. 19, the day before President-elect Joe Biden's inauguration. A senior Democratic aide said a 2004 resolution would allow McConnell and Minority Leader Chuck Schumer, D-N.Y., to jointly change the schedule — but there's no sign of an agreement on the matter.

This timeline poses a constitutional question: Can the Senate hold an impeachment trial for a president who has left office? Several scholars told Law360 it is plainly permissible.

"Impeachment is not just about removal," University of Texas School of Law professor Stephen Vladeck said. "The Constitution gives Congress the power to disqualify impeached officers from holding federal office in the future," after conviction by a two-thirds majority vote in the Senate.

The prospect of nearly 20 Republicans joining Democrats to convict Trump remains a long shot, however.

"As a matter of common sense and practice, the disqualification power would be toothless on this view because an officer could just resign minutes before the Senate convicts him," Vladeck added.

University of Missouri School of Law professor Frank Bowman, an impeachment scholar, said last-minute acts could not escape accountability.

"There's no immunity from any of the consequences that arise simply because the acts were committed in the final days in office," Bowman told Law360. "It's plain that the framers also were aware that there might be certain people who would arise in American politics, particularly presidents, who would represent a continuing threat to the constitutional order if they were allowed the possibility of ever getting back into public life."

"As a practical matter, the Senate has jurisdiction if it thinks so," Bowman said. "I would be willing to wager large sums that the Supreme Court would say this is a question entirely within the purview of Congress and we're not touching it."

Scholars have a cited historical precedent from 1876, when the Senate held an impeachment trial for William Belknap, President Ulysses S. Grant's war secretary, even though Belknap resigned shortly before the House voted on the impeachment articles. Belknap was acquitted, but only after the Senate voted 37-29 that it had the jurisdiction to try former government officials.

However, an American president has never faced a Senate trial after leaving office, and not everyone agrees it would be constitutional.

Former Fourth Circuit Judge Michael J. Luttig tweeted a counterpoint Monday, arguing that the Constitution allows impeachment only for "the president," meaning the current executive. The former conservative favorite — a groomsman at Chief Justice John Roberts Jr.'s wedding — suggested the remedy of removal confirms that limitation.

"The former President would no longer be incumbent in the Office of the President at the time of the Senate proceeding and would therefore no longer be subject to 'impeachment conviction,'" he said. "The very concept of constitutional impeachment presupposes the impeachment, conviction, and removal from office of a president who is, at the time of his impeachment, incumbent in the Office of President from which he is removed by the impeachment."

Jonathan Turley, the George Washington University Law School professor whom Republicans invited to argue against Trump's 2019 impeachment, seconded that view and warned of "an invitation to abuse."

"A strong argument can be made that a retroactive impeachment runs counter to the express reference to 'remove' as the primary and controlling purpose of an impeachment," Turley said in an email. "It is curious to use a removal provision on a president that has already left office. It is also a troubling precedent. New majorities could try to bar one-time presidents from office through retroactive impeachments."

While the U.S. Supreme Court has generally recognized impeachment as a political rather than judicial proceeding, Turley predicted the justices might consider an appeal in this case.

"This is one of the few impeachment issues that could be litigated and answered in a federal court," he said. "If [senators] bar Trump from holding future office, he clearly would have standing to challenge and it would not be simply a political question."

Vladeck differed on the courts' authority to weigh in on impeachment.

"I guess they could try to enjoin it, but the Supreme Court held rather expressly in 1993 that courts have no business supervising impeachment proceedings," he said. "I think it would be a pretty uphill battle to argue that this was somehow an exception."

That case, Nixon v. U.S. , involved an appeal from former Mississippi U.S. District Judge Walter L. Nixon Jr., who was impeached after going to prison for lying to a grand jury about his interference with a state drug prosecution.

Nixon sued to reinstate his judicial salary and privileges. He argued that, by establishing a committee to receive evidence and take testimony, the Senate prohibited the whole chamber from participating in the evidentiary proceedings.

Nixon appealed all the way to the Supreme Court, which unanimously ruled against him and held that impeachment is a "nonjusticiable" political question.

"A review of the Constitutional Convention's history and the contemporary commentary supports a reading of the constitutional language as deliberately placing the impeachment power in the Legislature, with no judicial involvement, even for the limited purpose of judicial review," the court said.

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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