Is the Trump impeachment trial constitutional? Experts weigh in

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Donald Trump

Then-President Donald Trump arrives on the South Lawn of the White House in Washington, D.C. on Jan. 12, 2021.

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NEW YORK — How can you convict a president via impeachment and remove them from office when they’ve already left office? How can that be constitutional?

That’s the big question and now it’s up to the United States Senate to come up with an answer.

That answer may come down to one word.

The House of Representatives impeached Donald Trump when he was still in office. He’s accused of “incitement of insurrection,” for allegedly firing up his supporters to march to the Capitol and stop certification of the electoral ballots for now-President Joe Biden. They turned into a violent mob and created a deadly riot.

Monday evening the article of impeachment was walked from the House to the Senate. The Senate is planning to start a trial Feb. 9, even though Donald Trump is now out of office and a private citizen.

THE CONSTITUTIONAL ISSUE

The US Constitution can be a confusing document. It’s useful to break things down to simple terms to see what’s at issue.

The relevant portion is Article 1, Section 3, Clause 7.

That alone is a mouthful. But all it’s doing is laying out the maximum things the Senate can do.

Here’s the text:

“ Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office…”

It’s the word “and” that is the potential troublemaker in construing what the constitution means and whether the Senate can try a president who’s already out of office and so can no longer be removed.

THE ARGUMENT AGAINST THE IMPEACHMENT TRIAL

Philip Bobbitt teaches a seminar on presidential impeachment at Columbia Law School. He’s also written a new edition of a textbook on the topic entitled “Impeachment: A Handbook.”

He believes the word “and” makes conviction and removal from office a necessary condition before the Senate can implement the further punishment of disqualifying Donald Trump from ever holding office again. And since the Senate can’t remove him, Phillips thinks a Senate trial would be improper.

Other top constitutional authorities, including Harvard Law School professor emeritus Alan Dershowitz — who defended Donald Trump in his first impeachment case last year — agree that the Senate can try only sitting Presidents.

THE ARGUMENT FOR HOLDING THE TRIAL

Late last week a group of some 170 legal scholars issued a letter expressing their belief that it is perfectly fine for Trump to go on trial even though he’s not in office any longer.

They argue that if it were otherwise, a major consequence of impeachment — the disqualification from ever holding public office again — always could be thwarted. An officeholder could resign before trial and then run for and possibly win office again.

PIX11 spoke via email with several of the signatories to the letter.

Harvard Law Professor Charles Fried told us, “If the Framers intended that a corrupt officer be subject to disqualification, there is no sense in reading the clause to allow such a person to defeat that contemplated consequence by a timely resignation…”

And they have a much different spin on that word “and.”

In fact, Fried said it may not even mean what you might think it does.

“There is no necessity to read ‘and’ as a conjunctive. It is frequently used in place of ‘or’,” he said.

Neil Siegel of the Duke University School of Law concurs that there does not have to be a removal from office before a president could be punished with the ban on holding future office.

“There is nothing in the text of the constitution that compels that reading. (It) does not say A has to happen before B,” he told us in phone conversation.

Professor Ian Bartrum of the University of Nevada Las Vegas Law School agrees on the way the word “and” should be read.

“This is not a conjunctive in the sense that we need to accomplish BOTH possible penalties…We need not accomplish ‘removal’ prior to ‘disqualification,'” he said. “’Removal’ is a necessary precursor only if the person still holds office.”

THE CASE PRECEDENT

The letter supporting Senate trial cites a case in support of its conclusions.

In 1876, Secretary of War William Belknap resigned just before he was impeached. The House still impeached him, and the Senate still tried him, even though he was out of office. (Belknap was acquitted.)

But the Senate trial may be moot in terms of punishing Trump: a two-thirds majority of the Senate would have to vote in favor of conviction. That means 17 Republican Senators would have to vote against Trump. And that appears unlikely.

WHAT IF TRUMP SUES TO STOP THE PROCEEDING?

And what if Trump were to challenge the legality of the Senate proceeding against him? Could the case work up to a dramatic Supreme Court decision? Columbia Professor Bobbitt said that’s unlikely.

“I think the Court will not take the case,” he told PIX11 in an email. “Because…the Constitution leaves impeachment entirely to the Congress.”

PREDICTIONS ON THE TRIAL

What do the impeachment experts think?

Professor Brian Kalt of Michigan State Law School, who also signed the letter last week, believes the constitutional issue can be used as a shield by reluctant Republicans.

“The jurisdictional argument will give cover to Republicans who don’t want to vote to convict but also don’t want to go on record saying that Trump did nothing wrong.”

Columbia’s Professor Bobbitt: “My best guess is that a trial will occur and that the former president will be acquitted.”

Professor Bartrum of UNLV: “My guess is that he will face trial but probably not be convicted — though some Republicans will vote for it. I wouldn’t be surprised if Republicans tried to draw it out as long as possible in order to frustrate Biden’s early agenda.”

Fried of Harvard: “He will certainly face a Senate trial. As Mark Twain said, all predictions are uncertain, particularly of the future. “

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