The Constitutionality of Trump’s Second Impeachment Trial

The U.S. Congress discusses the impeachment trial of Former President Trump. Source.

Former President Trump’s second impeachment trial will begin February 9, 2021, despite challenges from Trump’s legal team that holding such a trial is unconstitutional. The constitutionality of holding an impeachment trial after a president leaves office is not specifically mentioned in the Constitution, nor does it have any exact historical precedents. 

Trump’s legal team and some Senate Republicans argue that trying a former president after leaving office is unconstitutional. Kentucky Senator Rand Paul forced a procedural vote concerning the constitutionality of trying a former president, in an attempt to end the impeachment trial. The vote returned 55-45, meaning that the trial will go on. Still, the slim margin of decision to even continue with the trial indicates a low likelihood that former President Trump will be convicted, on account of the  ⅔ majority required for conviction. 

One constitutional argument put forth by J. Michael Luttig, a former judge on the US Court of Appeals for the 4th circuit, in an opinion piece for the Washington Post, argues that the point of impeachment is to remove a civil servant from a post if they are causing harm to the nation while in office. Since Former President Trump is already out of office, there is no further potential for him to harm the nation, therefore making an impeachment trial unconstitutional and out of the scope of the Senate. 

On the other hand, the House impeachment managers’ argument stated that the extreme nature of Trump’s offenses, such as “provoking an insurrectionary riot,” must be impeachable because if not, “it is hard to imagine what would be [an impeachable offense].” The article of impeachment that the House sent over argues that Trump committed “high crimes and misdemeanors,” in three points. First, Trump spoke to a crowd of supporters before the Joint Session where he falsely claimed victory in the election. Second, Trump encouraged the insurrection itself through inflammatory speech that directly led to the breach of the capitol. Third, Trump acted on his claims of victory with incidents like asking Georgia’s secretary of state to “find” more votes. 

More than 150 constitutional scholars signed a statement acknowledging that the impeachment trial is constitutional even in the cases of former Presidents, which is supported by the House impeachment managers’ brief that included the logic that there is no ‘January Exception,’ in the presidency. Just because a president is nearing the end of their term, does not mean they are exempt from the rules of the office. 

The second debate at stake concerning the First Amendment has been introduced by Trump’s legal team. The legal team argued that the “incitement of insurrection” charge, put forth by the House, “violates the 45th president’s right to free speech and thought,” followed by the proposal that the First Amendment protects Trump’s speech on January 6th. 

In response, a group of First Amendment lawyers and Constitutional scholars noted that First Amendment protections have no place in an impeachment trial because the trial is not criminal in nature, but instead has to do with the assessment of whether the former president violated his oath of office and committed ‘high crimes and misdemeanors.’ The group also included that even if the First Amendment did apply to this case, it would be irrelevant because the issue at stake is not whether Trump is allowed to say what he did, but rather if he violated the oath of office. 

It is likely that some senators may vote against convicting former President Trump simply because they do not agree with the trial occuring at all. Since Trump has already left office, and therefore can’t be removed, the real stakes are determining whether the former President will be allowed to run again in future elections as he has alluded to. To bar Trump from running for federal office, there would need to be a conviction from ⅔ of the Senate, and then a separate measure requiring a simple majority to bar him from running again.