March 2, 2021

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Legal scholars, including at Federalist Society, say Trump can be convicted – POLITICO

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The House impeached Trump last week, for the second time, in a 232-197 vote for “incitement of insurrection” following the attack on the Capitol by a pro-Trump mob that left five people dead. As the impeachment process moves into its next phase in the Senate, the signatories of the letter are seeking to counter an argument that has been gaining steam among some Republican senators: that it would be unconstitutional for the Senate to hold an impeachment trial for Trump now that he is a private citizen.

“The Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” Sen. Tom Cotton (R-Ark.) said in a statement last week. “The Founders designed the impeachment process as a way to remove officeholders from public office—not an inquest against private citizens.”

Many Republicans have taken a cue from the conservative former federal appeals Judge J. Michael Luttig, who argued in the Washington Post earlier this month that “once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.”

The constitutional scholars who signed on to the letter disagree with that assessment, arguing that because the Constitution’s impeachment power has two aspects — removal from office and disqualification from holding office again in the future — it must also be extended to former officials who could try to run for reelection.

“Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires,” they wrote. “But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction.”

Trump had signaled before leaving office that he might try to run for president again in 2024, and has reportedly mulled forming his own political party. But if the Senate were to hold an impeachment trial and convict him, he would be barred from holding public office ever again. That provision of the impeachment power, the legal scholars wrote, “is an important deterrent against future misconduct.”

“If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote,” they noted. “The Framers did not design the Constitution’s checks and balances to be so easily undermined.”

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