When the US Senate moves forward with an impeachment trial of soon-to-be former President Donald Trump, senators would have full control over how they run it, based on history and Supreme Court precedent.
Trump, who desperately fought his first impeachment proceedings and has remained defiant through his second, could not appeal the Senate’s action.
The Supreme Court affirmed in a 1993 case that impeachment is the domain of the two chambers of Congress, with the US House having the right to accuse and the Senate the “sole” power to try the accusation.
Then-Chief Justice William Rehnquist wrote that the Constitution leaves no room for judges to intervene in Congress’ business. To rule otherwise, Rehnquist said, would conflict with the framers’ intentions and expose the country to “months, or perhaps years, of chaos.”
Still, an array of questions has emerged since the US House of Representatives on January 13 impeached Trump, opening the door to a Senate trial, for inciting the violent resurrection at the Capitol on January 6.
Practical considerations hover along with substantive issues. House Speaker Nancy Pelosi has not yet set a date for delivery of the articles of impeachment to the Senate, and senators would be organizing a trial just as they take up the agenda of new President Joe Biden.
No president has been tried after leaving office. In earlier centuries, however, two other officials were impeached and subjected to some Senate action after they resigned. Among the basic questions spurred by a groundbreaking trial for an ex-president is whether the Chief Justice John Roberts would preside, as he did at Trump’s first impeachment trial one year ago.
Many legal scholars believe a former president can be subject to trial, and even some who differ, recognize that the 1993 precedent, in which Mississippi federal judge Walter Nixon unsuccessfully challenged Senate trial procedures in his impeachment case, case could thwart a Trump appeal to federal courts.
Yale University law professor Akhil Reed Amar said constitutional history and precedent allow the Senate to try former officials, including the President.
“It would be absurd if you could escape by resigning one step ahead of the gavel,” said Amar, author of “America’s Unwritten Constitution.”
In 1876, the Senate tried William Belknap, who was war secretary in the administration of Ulysses S. Grant. Belknap resigned just as the US House was voting to impeach him.
He was charged with “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
The Senate determined that the former secretary could still be tried. After a lengthy Senate trial with dozens of witnesses, Belknap was acquitted.
University of Missouri law professor Frank Bowman, author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” said the Constitution provides for removal, as well as “disqualification” from holding office, because the framers were concerned about future dangerous conduct.
“The framers were worried, principally, about getting a president out of office,” Bowman said, “but they were also worried about the rise of a demagogue.”
Bowman and Amar say the Walter Nixon case, along with the text and structure of the Constitution, would prevent Trump from drawing federal judges into an impeachment dispute.
Ross Garber, who teaches at Tulane Law School, asserts that the Senate may try only a sitting president but nonetheless agrees it would be difficult for Trump to find a court that would hear his appeal.
“I think the reasoning of Nixon (case) could be a problem for any Trump litigation effort,” he said, adding that “it is very unlikely the Supreme Court would stop the Senate in its tracks in a direct Trump challenge to its jurisdiction.”
Garber added: “Strategically, Trump is likely better off not litigating but instead appealing directly to the senators.”
Who’s on the dais?
The Constitution dictates that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”