On Sunday, South Carolina Rep. James Clyburn, the third highest-ranking Democrat in the House, floated a somewhat counterintuitive — even confusing — theory.
Clyburn’s Democratic colleagues have introduced one article of impeachment against President Trump for inciting a deadly insurrection against Congress; they are vowing to consider the resolution as early as Wednesday unless Trump resigns or is removed pursuant to the 25th Amendment.
But even if House Democrats impeach Trump this week for the second time in 13 months — and they have the votes to do it — Clyburn suggested they could wait until the spring to actually transmit the charges to the Senate for a trial, which would decide on Trump’s responsibility and punishment.
“Let’s give President-elect Biden the 100 days he needs to get his agenda off and running,” Clyburn told CNN, “and maybe we will send the articles sometime after that.”
After speaking with House and Senate leaders the following day, Biden suggested a Senate trial could start sooner — but not before Trump’s term is over.
“The question is … whether or not we can bifurcate this,” Biden told reporters. “Can we go half-day on dealing with the impeachment and half-day getting my people nominated and confirmed in the Senate?”
Clyburn and Biden were grappling with the political and practical consequences of a process that risks further inflaming partisan tensions and complicating the incoming president’s agenda. But by skipping straight to logistics, they glossed over a more obvious question that many Americans may be asking themselves right now:
So wait — can Congress really impeach a president after he’s left office? And if he’s already vacated the White House, why even bother?
Not impeaching an ex-president would seem like common sense. Impeachment is typically seen as the indictment of a sitting officeholder, and removal from office is typically seen as the sentence. But in fact, U.S. history provides several examples of public officials who weren’t impeached for the “high crimes or misdemeanors” they committed in office until after they stepped down — and U.S. law clearly states that removal isn’t the only way to punish an impeached president.
For Democrats aiming to hold Trump accountable for the attack on the Capitol, these loopholes mean impeachment could still be an attractive tool — even if any conviction would come too late to trigger Trump’s removal.
Which it almost certainly would. Insiders say Vice President Mike Pence is “highly unlikely” to invoke the 25th Amendment. Trump has privately refused to resign. And with only eight days left in the president’s term, Republican Senate Majority Leader Mitch McConnell has made it clear that, absent a unanimous vote to return earlier, the Senate can’t even reconvene for substantive business until Jan. 19, the day before Joe Biden’s inauguration — let alone conduct an entire impeachment trial between now and then.
Democratic Minority Leader Chuck Schumer is reportedly exploring the idea of using an obscure, post-9/11-era emergency authority to reconvene the Senate and launch an impeachment trial immediately after the House transmits the articles. But it’s a long shot because McConnell would have to agree.
So Trump is all but certain to serve out the remaining days of his presidency before departing for Mar-a-Lago — and his second impeachment trial is all but certain to start after he leaves.
A post-presidential impeachment trial would be a fittingly bizarre coda to Trump’s norm-busting regime. But it’s not entirely unprecedented. In 1798, Tennessee Sen. William Blount conspired to give Britain control over parts of Florida and Louisiana; Blount was immediately expelled by the Senate. He was then impeached and tried. During his trial, Blount trial argued it was too late to impeach him, but the argument failed.
Likewise, President Ulysses S. Grant’s secretary of war, William Belknap, tearfully resigned in 1876 to head off impeachment for corruption — or, to quote the actual articles of impeachment, “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.” Yet the House proceeded to impeach Belknap anyway, and the Senate went on to try him “after agreeing that it retained impeachment jurisdiction over former government officials.”
No court has definitively ruled on the matter of post-presidential impeachment. But while “impeachment is the exclusive method for removing a president from office,” as leading conservative scholar Michael Paulsen points out, “nothing in the constitutional text literally limits impeachment to present officeholders.” In fact, as Brian Kalt of Michigan State University College of Law argued in a 2001 article, “late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required.”
The possibility of punishment is key. “Structurally,” Kalt continued, “impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him.”
It turns out that under the Constitution, “judgment in cases of impeachment” isn’t restricted to “removal from Office”; it can also consist of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” The very fact that the Senate has this power, in other words, suggests that presidents can’t just run out the clock and expect to get off scot-free.
There is precedent here as well. So far, three federal judges — West Humphreys in 1862, Robert Archbald in 1913 and Thomas Porteous in 2010 — have been impeached, convicted, removed and permanently barred from holding future office by Congress.
In addition, the Former Presidents Act stipulates that any president whose service is terminated “by removal pursuant to section 4 of article II of the Constitution of the United States of America” automatically loses some of his or her post-presidential perks.
It’s true that trying a president on impeachment charges after he’s left office — and seeking to disqualify him from ever serving again — would represent something new in American history. Presidents, of course, aren’t judges or Cabinet secretaries, and no official has ever been barred from future office without also first being removed.
But isn’t hard to see why Democrats are attempting to hold soon-to-be-former-President Trump accountable via impeachment, and why they believe they have a legal leg to stand on. Another remedy that Democrats have discussed, Section 3 of the post-Civil-War 14th Amendment, prohibits anyone from holding future office who gives “aid and comfort” to an “insurrection or rebellion” against the Constitution of the United States, and one can argue that it already bars Trump from a political comeback even if impeachment fails or the 25th Amendment is not invoked.
Yet “the legal ambiguity of this interpretation of Section Three” could make it “a less than satisfactory” source of punishment for Trump “over his effort to subvert an election he lost,” as New York magazine’s Ed Kilgore has argued. That’s because “it could only be tested in the event Trump runs for federal or state office at some point in the future, and no one knows for sure if the courts would uphold a 21st century application of a provision clearly designed for use against” former members of the Confederacy.
Impeachment is the more straightforward route. If a majority of the House votes to impeach Trump before the end of his term, and if two-thirds of the Senate eventually votes to convict, he would no longer enjoy a pension of more than $200,000 a year and an annual staff stipend of nearly $100,000. (He could lose his Secret Service protection as well, though the law is less clear on that point.)
After conviction, precedent suggests that all it would take to disqualify Trump from future office would be a second vote in the Senate — and this time a simple majority would suffice. (Judge Archbald, for instance, was disqualified by a vote of 39-35 after he was removed.)
The bottom line is that even if the Senate can’t remove Trump from office in time, it can still punish him. Whether it will punish him, however, is another story. After Georgia’s two new Democratic senators, Raphael Warnock and Jon Ossoff, are sworn in — something that should happen right around the time Biden is inaugurated — Democrats will control only 50 seats in the Senate. To reach the two-thirds majority needed to convict Trump on articles of impeachment, they will need at least 17 Republicans to break ranks and vote against him.
That will be a tall order. GOP aides recently told the Washington Post that there “are clearly more Republicans considering turning on Trump now than did in the last impeachment process.” Yet so far only Sens. Lisa Murkowski, R-Alaska, and Patrick Toomey, R-Pa., have called for Trump’s resignation, and only Sen. Ben Sasse, R-Neb., has said he’d “definitely consider” articles of impeachment.
The more time that passes, the more polarized Republicans may become against Biden — and the less inclined they will be to punish a president who’s already left the White House and is still popular with their base. Even moderate Democratic Sen. Joe Manchin of West Virginia, who recently called his own party’s impeachment push “so ill-advised,” isn’t a guaranteed vote for conviction.
And so regardless of whether Democrats wait “the 100 days” Biden “needs to get his agenda off and running” or “bifurcate” the process sooner, the final outcome of America’s first post-presidential impeachment proceedings may be the same: a second impeachment for Trump in the House — and a second failure to convict in the Senate.
Or maybe not. Late Tuesday, the New York Times reported that McConnell “has told associates that he believes President Trump committed impeachable offenses and that he is pleased that Democrats are moving to impeach him, believing that it will make it easier to purge him from the party, according to people familiar with his thinking.”
In a follow-up tweet, reporter Jonathan Martin added that “a Senate Republican aide” told him that “there were about 20, give or take, Republicans who were *open* to a conviction” — and that was before he published the McConnell story.
As always in Trump’s America, it looks the unthinkable could still happen.