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Experts Dispute GOP Senators’ Claim That Trump Impeachment Is Unconstitutional

Historical precedent, plus the wording of the Constitution itself, suggest a former president can be impeached.

Then-Senate Majority Leader Mitch McConnell leaves the House chamber at the U.S. Capitol in Washington, D.C., on January 6, 2021.

On Monday evening, House managers delivered a single article of impeachment against former President Donald Trump to the Senate, related to his instigating a mob of his loyalists to attack the U.S. Capitol building on January 6. But Republicans have signaled a reluctance to convict him, with several of his legislative allies decrying attempts to do so simply because he’s out of office.

A number of Republican senators, in fact, have suggested that indicting Trump at this point would be an unconstitutional move.

“Our members, irrespective of what they might think about the merits, just believe that this is an exercise that really isn’t grounded constitutionally and, from a practical standpoint, just makes no sense,” South Dakota Sen. John Thune, the Senate Republican Whip, recently said.

Others have expressed a deeper indignation toward the concept of a Senate trial for a former president.

“I object to this unconstitutional sham of an ‘impeachment’ trial and I will force a vote on whether the Senate can hold a trial of a private citizen,” Sen. Rand Paul (R-Kentucky) said on Monday.

Sen. Ron Johnson (R-Wisconsin) even went so far as to suggest there wasn’t a provision found in the Constitution that would justify “holding such a trial over a former president who is now a private citizen.”

“Where would we get the authority to do so?” he added in a tweet last week.

Although Republicans loyal to Trump are making forceful arguments about a Senate trial being unconstitutional, their claims aren’t backed up by evidence or historical record, and a number of experts disagree with their views. This past week, in fact, 150 legal scholars representing liberal and conservative viewpoints — including one individual who was a co-founder of the far right Federalist Society — signed an open letter disputing the arguments made by Trump loyalists against the constitutionality of impeaching a former president.

“We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation,” that letter stated. “But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”

“I don’t buy that argument as anything other than an argument of convenience,” Justin Levitt, a constitutional law professor at Loyola Law School, said to Talking Points Memo, noting that a person could theoretically resign office “moments before the Senate vote” to avoid being indicted in a Senate trial, under the theory that many Republican lawmakers are pushing.

Indeed, the provisions stated in the Constitution itself lend credence to the view that a Senate trial can be held for a former official, including a president.

The Constitution states that two-thirds of the Senate must vote to indict an impeached official, and if the vote is successful, another vote can be taken to disqualify the individual from being able “to hold and enjoy any office of honor, trust or profit under the United States.” Because of the provision to permanently disqualify a person from holding future office, many experts agree, the Constitution allows Congress to impeach and indict former officials for improper conduct while they were in office.

There’s precedent for this, too, dating back to the mid-19th century. William Belknap, who served as secretary of war in President Ulysses S. Grant’s administration, was accused of using his office to accept bribes. Tearfully, he resigned his office to avoid being impeached, but the House proceeded with the impeachment anyway, and the Senate held a trial shortly after. Although the Senate voted 35-25 in favor of indictment, Belknap avoided repercussions from his impeachment as the two-thirds threshold wasn’t met.

Republicans currently arguing against an impeachment trial in the Senate also appear to be forgetting that some among their ranks were once in favor of impeaching a former president not much more than a year ago. During Trump’s first impeachment, Rep. Matt Gaetz (R-Florida) used false claims about former President Barack Obama purportedly wiretapping Trump while he was a candidate for office, as a bizarre defense against impeaching Trump — suggesting that he would attempt to impeach Obama even though the former president had been out of office for almost three years at that point.

Regardless of what Republicans say, an impeachment trial is set to move forward the week of February 8. At least 16 GOP senators were reportedly considering voting to indict Trump for his role in instigating the Capitol breach, but it appears that many are now wavering. Although a majority in the Senate may vote in favor of indicting Trump, it’s more likely than not at this point that Trump will avoid the two-thirds threshold to be convicted.

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