Senate GOP set to argue out-of-office Donald Trump can’t be convicted in impeachment

Donald Trump’s political fate rests on whether a president can be convicted through the impeachment process after leaving office.

Donald Trump addresses the Stop The Steal Rally in Washington on January 6. Picture: AFP

The political fate of Donald Trump, and any ambitions he might have for reclaiming the White House in 2024, could be settled by who wins a debate over whether a president can be convicted through the impeachment process after leaving office — a matter on which the US Constitution is silent.

The House of Representatives impeached Mr Trump last Thursday AEDT for “high crimes and misdemeanours” for conduct culminating with a speech exhorting thousands of his followers to march down Pennsylvania Avenue to the Capitol and “fight like hell” against congressional certification of President-elect Joe Biden’s Electoral College victory.

“Thus incited by President Trump, members of the crowd he had addressed … unlawfully breached and vandalised the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts,” the impeachment resolution, which won support from 10 Republicans, alleges.

The Senate could take the next steps — trying Mr Trump and voting on his guilt — as soon as this week. Conviction requires a two-thirds vote by senators present; assuming perfect attendance, 17 Republicans would need to join all 50 Democrats to find Mr Trump guilty.

Many Republicans are gravitating toward a technical argument: The Senate lacks jurisdiction to try him after he leaves office, they maintain, because he will be a private citizen. That could allow the Republicans to thread a political needle, voting against Mr Trump’s conviction without having to defend his conduct, people familiar with the discussions say.

“The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens,” Republican senator Tom Cotton said on Thursday. Other Republicans are coming to agree.

“Impeaching a president after leaving office, I think, is unconstitutional. It’s never been done before for a reason: it sets up a never-ending retribution,” Senate Judiciary Committee Chairman Lindsey Graham said on Saturday, though he added that it was “a big mistake” for Mr Trump to whip up his followers.

That argument is countered, however, by Democrats who say Mr Trump shouldn’t be able to evade political sanction simply because his offences occurred in the twilight of his term. They cite several historical examples where impeached officials, including judges, faced Senate trials after leaving office.

There is more at stake than Mr Trump’s reputation. Possible sanctions, if he is convicted, include disqualification from future federal office. With Mr Trump indicating he might run for president again, that could affect the trajectory of American politics.

“Impeachment and conviction would prevent Trump from ever menacing our country again through an elected position,” Democrat representative Ted Lieu, a House impeachment manager, wrote in a Los Angeles Times op-ed, and would “strip Trump of taxpayer-funded benefits like a pension, health insurance, office space and staff.”

The framers “wanted to make sure that someone who became tyrannical or corrupt” not only could be removed from office, but also “politically neutered,” barred from returning to power, said University of Missouri law professor Frank Bowman, an authority on impeachment.

A report from the Congressional Research Service, the public-policy research arm of congress, concludes that while the matter is open to debate, the weight of scholarly authority agrees that former officials may be impeached and tried.

That report, issued on Saturday, said the “principal precedent” was the 1876 impeachment and trial of secretary of war William Belknap, who resigned after the House obtained evidence that he had taken kickbacks from an associate appointed to run a frontier trading post.

The House impeached him anyway, and the Senate tried him, rejecting Belknap’s argument that, as a private citizen, he was immune from the process. (He was ultimately acquitted.) The three presidents previously impeached — Andrew Johnson, Bill Clinton and Mr Trump himself — all were tried and acquitted by the Senate while in office. Senate majority leader Mitch McConnell declined to call the Senate back from its recess after the House impeached Mr Trump last Thursday, putting the proceeding off until after Mr Biden becomes president this Thursday.

If the framers did intend to expose former presidents to impeachment trials, they left some details unclear. For instance, while the constitution specifies that the US chief justice preside when the Senate tries the president, it is silent about who oversees an ex-president’s trial. (Chief Justice John Roberts, who oversaw Mr Trump’s first Senate trial, declined to comment on a possible repeat appearance.) Such omissions lead others to argue that exposure to impeachment expires with the president’s term.

“The two remedies for impeachment — removal and disqualification — are only remedies for an impeachment that is itself constitutional, which a trial of the former president would not be,” said J. Michael Luttig, a conservative former federal appeals judge.

People familiar with Senate discussions say that several Republicans have consulted with Mr Luttig, who also told Vice-President Mike Pence that there was no constitutional authority to discard electoral votes cast for Mr Biden before Mr Pence announced on January 6 that he would count the votes as certified by the states.

On Saturday, House managers announced they had brought back lawyers who assisted in prosecuting Mr Trump’s first impeachment: Barry Berke, an expert in white-collar crime and public corruption, and Joshua Matz, who with Harvard law professor Laurence Tribe wrote a 2018 book on impeachment, To End a Presidency. One point on which all agree, however, is that a president’s exposure to criminal prosecution, which effectively is suspended while he holds office, is restored once his term ends. State and local authorities in New York have current criminal investigations into the Trump Organisation’s financial conduct. Mr Biden has said he would stay out of any prosecutorial decisions by the US Justice Department.

“The president’s conduct on [Jan. 6] is subject to the law of the land. If you believe he committed a crime, he could still be prosecuted after he’s out of office,” Senator Graham said.

The Wall Street Journal