Former Fourth Circuit Judge: Senate Can’t Hold Impeachment Trial After Trump Leaves Office

Former Fourth Circuit Judge: Senate Can’t Hold Impeachment Trial After Trump Leaves Office

Impeachment 2.0 is upon us, and the House of Representatives is expected to vote today to impeach President Donald Trump for a second time, with only days left in his presidency.

But don’t expect a Senate trial anytime soon. House Majority Whip James Clyburn laid out a timeline for impeachment on Sunday – and said that Democrats may wait until after Joe Biden’s first 100 days in office to send any impeachment articles to the Senate. Biden proposed working with the Senate for his agenda in the mornings, while holding impeachment trials in the afternoon.

Nancy Pelosi has already admitted the true reason Dems want impeachment: that they’re afraid of Trump running again.

Never before has a senate trial for an impeached president been held after they left office, and J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, made the case that doing so would be unconstitutional. He penned an op-ed in the Washington Post last night to outline the case.

To quote the key parts of his argument:

The sequencing of the House impeachment proceedings before Trump’s departure from office and the inauguration of the new president, followed by a Senate impeachment trial, perhaps months later, raises the question of whether a former president can be impeached after he leaves office.

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.

Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.

The reason for this is found in the Constitution itself. Trump would no longer be incumbent in the Office of the President at the time of the delayed Senate proceeding and would no longer be subject to “impeachment conviction” by the Senate, under the Constitution’s Impeachment Clauses. Which is to say that the Senate’s only power under the Constitution is to convict — or not — an incumbent president.

Luttig says that Article II Section 4 of the Constitution confirms the view that the purpose of impeachment is to remove from office a president before he can cause further harm. That article and section 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.”

Furthermore, Article I Section 3 reads “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.”

As for Pelosi desiring impeachment to prevent Trump from running again, Luttig says “This is incorrect because it is a constitutional impeachment of a president that authorizes his constitutional disqualification. If a president has not been constitutionally impeached, then the Senate is without the constitutional power to disqualify him from future office.”

Then again, when have Democrats let the Constitution get in their way before?

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