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Debate swirls over whether Senate can pursue impeachment trial after Trump's term ends

The House of Representatives recently voted 232-197 in favor of impeaching President Trump.

Updated: January 18, 2021 - 10:13am

The Facts Inside Our Reporter’s Notebook

While the House of Representatives recently voted 232-197 in favor of impeaching President Trump, there is debate surrounding the issue of whether the Senate can hold an impeachment trial of a former president.

The House's latest impeachment push came shortly before Joe Biden will be sworn in as the nation's next commander-in-chief, and if a Senate trial occurs, it would not conclude until after Trump steps down.

Constitutional law scholar Alan Dershowitz does not believe that the U.S. Senate possesses the authority to try Trump after he departs from office.

"Once Mr. Trump is no longer president, the Senate simply has no authority to try him because you can't remove him," he said during an episode of his program called The Dershow. "You can't remove somebody who is no longer president." 

"But the idea of now going to a Senate trial in order to disqualify him — a trial that's probably unconstitutional, a trial that's probably illegal and a trial that may well be struck down by the courts — is a foolish waste of American taxpayers' money, of priorities, and I think, is not good for the Biden administration," Dershowitz said.

But Laurence Tribe, like Dershowitz a longtime Harvard Law School professor, contends that the Senate can, and should, press ahead.

"The Senate appears unlikely to take up the article of impeachment against President Trump before his term ends next Wednesday," Tribe wrote in The Washington Post. "That does not require the end of proceedings against him. The Senate retains the constitutional authority — indeed, the constitutional duty — to conduct an impeachment trial against the soon-to-be-former president."

"To be sure," Tribe continued, "a former officer may no longer be 'removed' even upon conviction by a two-thirds vote. But that has no bearing on whether such an ex-officer may be barred permanently from office upon being convicted. That separate judgment would require no more than a simple majority vote." 

Ten House Republicans voted in favor of the House's recently passed article of impeachment, but even if the Senate moves ahead with a trial, it is considered unlikely that Democrats would secure enough GOP support to reach the high bar needed to convict.

"This impeachment should end with the Trump administration," legal commentator Jonathan Turley wrote in USA Today. "I do not fault those who view the president's conduct as impeachable. The speech was reckless and wrong. My primary objection was to the use of a snap impeachment and the language of the article of impeachment. That is now part of Trump's presidential legacy. The question is now what will be the troubling constitutional legacy left by the Senate in the trial of an ex-president." 

"In my view," Turley concluded, "a retroactive removal vote would combine with the use of a snap impeachment to fundamentally [alter] the role of impeachment in the United States. It would take a rush to judgment and turn it into a parade of constitutional horribles. Any party could retroactively impeach or remove a former president for the purpose of disqualifying him from office. Thus, if a party feared a one-term president's possible run, they could hold use impeachment to eliminate the political threat."