Questions have been raised about the constitutionality of former US President Donald Trump's impending Senate trial . The Trump is the first president isolates twice and will be the first former president on trial in the Senate after leaving office.
According to CNN , the Democrats in the House of Representatives are expected to send the impeachment materials to the Senate soon, but the timing is still unclear. Sources have told CNN that it may be Friday, January 22.
Is it correct to continue impeachment measures in the Senate after leaving office?
After Trump's most recent impeachment trial in the House of Representatives, former Judge J. Michael Lotting posed some constitutional questions, writing on January 12 in the Washington Post that "Congress is losing its constitutional authority to continue impeachment measures" against Trump after leaving office, because "The only authority of the Senate under the Constitution is to condemn - or not condemn - the incumbent president."
Since then, several Republican senators, including Tom Cotton, Johnny Ernst and Roger Marshall, have said they do not believe it would be constitutional to convict Trump in the Senate after leaving office.
Senate Democratic Rep. Richard Blumenthal described the arguments questioning the constitutionality of the trial as "bogus," saying, "There is nothing in the Constitution that would prevent a federal employee from being tried after leaving office."
Under the constitution, the House of Representatives can indict a president for "treason, bribery, or other major crimes and misdemeanors," and then the Senate holds a trial, and a two-thirds majority is needed to convict and remove the president from office. Another vote would be necessary to prevent the former president, in this case, from taking office again, but that vote would only require a slight majority.
The constitution does not specifically address the conviction of a former president, but simply provides for the removal of the “president,” “vice president,” and all civilian officials “from their posts in cases of impeachment and conviction for treason, bribery or other crimes and misdemeanors.”
What do experts say about these legal precedents?
The Congressional Research Service report, released on January 15, indicates that although the Constitution does not "directly address" the issue, most experts have concluded that Congress has the power to impeach and convict the former president.
In editorials for the Washington Post and The New York Times , Harvard Law School professor Lawrence Tribe and CNN legal expert Steve Vladik argued, respectively, that this trial is partly constitutional because the Senate’s role in impeachment is determined by two separate rulings. The first is impeachment, and the second is exclusion from holding federal office in the future.
Tribe noted that although a former official such as the president can no longer be removed from office, this “has no effect on whether this former official would be permanently barred from this position upon conviction”.
According to Vladik, the power of the Senate to remove an individual from office in the future is the "primary evidence" that the trial of a former official is constitutional .
“If not,” Vladek wrote, “an official facing impeachment, or an official who is already sacked and about to be fired, can also avoid exclusion from taking office again simply by resigning from the position.”
Akil Reid, a law professor at Yale University, agreed, telling CNN that "it would be absurd to be able to escape by resigning one step before dismissal."
Historical precedents
A precedent occurred in 1993 in which a Mississippi federal judge challenged then-President Walter Nixon in the Senate trial in his impeachment case, said Ross Garber, a professor of law at Tulane University, who maintains that the Senate can only prosecute the president while he is in office. Feasibility, which makes it likely that it will be difficult for Trump to find a court to look into his appeal.
"I think the cause of the Nixon case could be a problem for any litigation effort for Trump," Garber told CNN, adding that "it is unlikely that the Supreme Court will stop the Senate from its course in directly challenging Trump's jurisdiction."
In addition to the Nixon case, a report issued by the Congressional Research Service in November cites the 1876 trial of Secretary of War William Belknapp, who was tried and acquitted even after his resignation. The Senate eventually upheld his authority to try Belknap even after his sudden resignation, although some senators who voted to acquit indicated that they did. Because they felt the Senate lacked jurisdiction over Belknap once he was no longer in office.