Alex Brandon/AP Photo
The single article of impeachment against President Donald Trump is seen before transmission to the Senate, January 13, 2021.
Why should the Senate try to convict Donald Trump once he’s no longer president?
Because even after Trump has left the White House, the Senate will have the opportunity and obligation to decide whether he has committed a high crime or misdemeanor, whether a self-pardon which Trump may yet issue has any validity, whether he should be barred from ever again holding office, and whether he will be stripped of the many perks he will receive under the Former Presidents Act of 1958.
The Constitution clearly suggests that impeachment’s basic purpose is the removal of a federal official from his or her office if convicted. Article II, Section 4 of the Constitution provides that officials impeached and convicted “shall be removed from office.” But that’s not all it says. Article I, Section 3 declares: “Judgment in Cases of Impeachment shall not extend further than to removal from office, and [italics added] disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
Since a possible penalty in a successful impeachment proceeding is disqualification from thereafter holding any federal office, a trial can clearly proceed despite a president’s resignation or the expiration of his or her term. Otherwise an impeached miscreant former president might avoid these constitutionally established penalties.
And that’s not all the Constitution says about impeachment. Article II, Section 2 of the Constitution declares that a president “shall have the power to grant … pardons for offences against the United States, except in cases of impeachment.” This provision could prevent a situation where a president seeks to pardon a previously impeached and convicted former president in order to remove a disqualification from office which had been imposed earlier by the Senate.
The Constitution also suggests that a Trump conviction would render moot any pardon Trump grants himself in his remaining week in office. Article I, Section 3 stipulates that a party convicted in an impeachment trial “shall nevertheless be liable and be subject to indictment, Trial, judgment and punishment according to Law.” This provision might override any pardon that Trump might attempt to grant himself. The notion that a president might secretly accept bribes during his term of office, and pardon himself on his last day in office, strongly bolsters the case that Congress has the power to impeach and convict former presidents after they’ve left office.
A Senate conviction (which requires the vote of two-thirds of the senators voting) would enable the Senate to vote to disqualify Trump from holding any federal office in the future (that vote requires just a simple majority). It might also make Trump liable for crimes he may have committed as president, self-pardon notwithstanding, thus reaffirming the principle of equal justice before the law.
We don’t yet know which attorneys will defend Trump in his upcoming Senate trial. His legal team from his first impeachment trial has largely abandoned him. But Alan Dershowitz, one of Trump’s staunchest legal defenders, who wrote a book entitled The Case Against Impeaching Trump in connection with Trump’s first impeachment, has proclaimed his availability and made his case for Trump’s innocence on Fox News, a few days after the storming of the Capitol.
Dershowitz argues that once Trump leaves office on January 20, the Senate would no longer have jurisdiction to try him since the Constitution limits impeachment trials to sitting presidents, which appears to be an interpretation of the Constitution plainly at odds with the Constitution. Dershowitz also argues that what Trump said to his minions before he sent them off to the Capitol on January 6 was constitutionally protected by the First Amendment.
But consider what Trump actually told his supporters:
“If you don’t fight like hell, you’re not going to have a country anymore.”
“We will stop the steal.”
Unless they took action, “you will have an illegitimate president.”
“We can’t let that happen.”
When they got to the Capitol, he told them, “I’ll be with you.”
And this followed his tweet inviting them to Washington on the 6th, in which he said, “Be there, will be wild.”
With Vice President Pence having rebuffed Trump’s entreaties to reverse the vote of the Electoral College, there was only one way that the counting of the votes in the joint session might have been stopped at that point, and that was a physical invasion of the Capitol, which occurred, and succeeded in temporarily halting the count—but did not end it.
Trump’s “speech” clearly meets the test of the Supreme Court’s ruling in Brandenburg v. Ohio (1969), where the Court held that language “directed to inciting or producing imminent lawless action and … likely to incite or produce such action” was not protected speech under the First Amendment.
By convicting Trump, the Senate will spare the nation another Trump candidacy, help ensure the nation’s safety, and uphold the principles that no one is above the law, and that unlawful action by errant officeholders has appropriate political consequences.
