[Thread Article] Democrats have proposed holding the trial over Trump’s impeachment well-into Biden’s presidency. Michael Luttig, a former judge of the U.S. Court of Appeals for the 4th Circuit, slammed the idea on Tuesday, asserting that impeaching and removing a president after he left office is “unconstitutional.”
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[Trumpisourlastchance #3] You can’t remove a president who is not the president.
But after an official leaves office, he may be impeached. Per the Constitution, Article I, Sec. 2, Cl. 7, "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust, or Profit under the United States...."
The impeachment and trial of an official after he has left office not only can be done, it has been done.
In order, William Belknap resigned, his resignation was accepted, and then he was impeached and tried (acquitted with a majority, but less than two-thirds for conviction).
The Senate overruled a plea to lack of jurisdiction. An impeachment proceeding is held pursuant to the Constitution. It is the same for all officials whether judge, senator, or president. There is clear precedent to hold a trial.
https://www.senate.gov/artandhistory/history/minute/War_Secretarys_Impeachment_Trial.htm
War Secretary's Impeachment TrialMay 1876
An impeachment trial for a secretary of war occupied much of the Senate’s time during May 1876.
At issue was the behavior of William Belknap, war secretary in the administration of President Ulysses Grant. A former Iowa state legislator and Civil War general, Belknap had held his cabinet post for nearly eight years. In the rollicking era that Mark Twain dubbed the Gilded Age, Belknap was famous for his extravagant Washington parties and his elegantly attired first and second wives. Many questioned how he managed such a grand lifestyle on his $8,000 government salary.
By early 1876, answers began to surface. A House of Representatives committee uncovered evidence supporting a pattern of corruption blatant even by the standards of the scandal-tarnished Grant administration.
The trail of evidence extended back to 1870. In that year, Belknap’s luxury-loving first wife assisted a wheeler-dealer named Caleb Marsh by getting her husband to select one of Marsh’s associates to operate the lucrative military trading post at Fort Sill in Indian territory. Marsh’s promise of generous kickbacks prompted Secretary Belknap to make the appointment. Over the next five years, the associate funneled thousands of dollars to Marsh, who provided Belknap regular quarterly payments totaling over $20,000.
On March 2, 1876, just minutes before the House of Representatives was scheduled to vote on articles of impeachment, Belknap raced to the White House, handed Grant his resignation, and burst into tears.
This failed to stop the House. Later that day, members voted unanimously to send the Senate five articles of impeachment, charging Belknap with “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
The Senate convened its trial in early April, with Belknap present, after agreeing that it retained impeachment jurisdiction over former government officials. During May, the Senate heard more than 40 witnesses, as House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office.
On August 1, 1876, the Senate rendered a majority vote against Belknap on all five articles. As each vote fell short of the necessary two-thirds, however, he won acquittal. Belknap was not prosecuted further; he died in 1890.
There's no clear legal precedent establishing that someone can be impeached, convicted, and punished after leaving office. It's been attempted, but never completed.
Also, while the availability of disqualification means the trial is not moot, there may be other constitutional impediments to trying a former officer.
For example, Article II, Sec. 4 provides, "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."
The Senate has acknowledged that this language limits their jurisdiction to try impeachments to the "President, Vice President," and "civil Officers of the United States": In 1797, Senator William Blount was impeached by the House. He was also expelled by the Senate. He filed two pleas seeking dismissal in the Senate: (1) He pled that the Senate lacked jurisdiction because a senator is not a "civil Officer of the United States;" and (2) he pled that the Senate lacked jurisdiction because he was expelled and thus was no longer a "civil Officer of the United States." The Senate dismissed the case by passing a resolution finding that it lacked jurisdiction, but it did not specify on which grounds it based that finding.
Also, there may be a question whether punishment of a former officer constitutes an unconstitutional bill of attainder. This is a rather arcane question.
Of course, whether any of this matters depends on whether a conviction is actually reviewable by a court. The Supreme Court held in Nixon v. United States that the question of whether the Senate actually conducted a "trial" is a nonjusticiable political question because, in part, of the Constitution's grant of the "sole power to try impeachments" to the Senate. But the procedural question of whether the Senate conducted a sufficient "trial" might be distinguished from the jurisdictional question of whether the person was actually subject to trial and impeachment, or the substantive question of whether grounds for impeachment have actually been set out in the articles of impeachment or proved at trial.
Ultimately, I doubt we'll get an answer to this question. There will probably be another impeachment trial which will take place after Trump leaves office, but I doubt Trump will be convicted.
Someone brought up that precedent to Alan Dershowitz last night and he said they got it wrong when they had that trial in 1876.