All Your Paranoid Impeachment Questions, Answered. Again.

What you need to know about the unprecedented second trial of Donald J. Trump

Photo: Drew Angerer/Getty Images

The second impeachment trial of Donald Trump presents a series of unusual constitutional questions. There is little argument about the facts of the case: Donald Trump repeatedly tried to overturn the results of the 2020 election and then, on January 6, 2021, egged on a crowd that would later storm the Capitol, terrorize lawmakers, damage historic property, and kill a policeman. Instead, the debate and Trump’s likely defense have pivoted on questions of law. Can a federal official be impeached after leaving office? And were Trump’s actions an impeachable offense? These are the questions that Republican defenders of the president hope will drive the impeachment trial scheduled to begin on February 9, as Democrats lay out the case against Trump’s actions.

So can Trump be impeached after leaving office?

Yes. The preponderance of scholarly opinion is that late impeachment, the technical term for impeaching someone who is no longer in office, is constitutional. As Brian Kalt, a law professor at Michigan State who has studied this, points out, “While the text may be ambiguous, the history is clear” that late impeachment is allowed, in light of contemporary practice at the timing of the Constitution’s framing.

Has anyone ever been impeached after leaving office?

Two federal officials have been subjected to a Senate impeachment trial after leaving office. The first was William Blount, a senator from Tennessee who in 1797 faced charges of conspiring with the British to invade Spanish Florida. While Blount’s trial is often used to point to a different precedent — that members of Congress are not subject to impeachment — Blount’s lawyers conceded in his defense that impeachment after leaving office was possible. However, they argued, in his case, the remedy of impeachment would not apply because he had already been expelled from the Senate for his actions.

More recently, William Belknap, Ulysses S. Grant’s secretary of war, was impeached only hours after resigning from office in 1876. Belknap was illegally charging kickbacks in exchange for appointments to operate trading posts at forts on the frontier. During his trial, the Senate voted by a 37–29 margin that federal officials could still be subject to impeachment even after leaving office. And though a majority of the Senate voted to impeach him on each of the five counts that he faced, the vote fell short of the two-thirds margin necessary to convict him and Belknap was acquitted.

Does it matter that John Roberts is not presiding?

Trump supporters have raised concerns that without the chief justice of the Supreme Court presiding, the process is rendered invalid. In an op-ed for The Hill, Kentucky Republican Sen. Rand Paul asserted, “If [Chief] Justice Roberts is not presiding over this, then it is not impeachment.” However, as Kalt pointed out, “it’s a technicality that the Chief Justice presides. Nothing really turns it.” The clause in the Constitution providing for the Chief Justice to preside over presidential impeachment trials is there to avoid the conflict of interest inherent in a vice president, in their role as the president of the Senate, presiding over the trial of a sitting president.

However, Frank Bowman, a law professor at the University of Missouri, did warn that “it potentially leaves a defect” and creates a legal question that courts “could take up without intruding very much” on the constitutional impeachment process. Vermont Sen. Patrick Leahy, a Democrat, is scheduled to preside over the trial as the president pro tempore of the Senate, its most senior member from the majority party. The president pro tempore has traditionally presided over non-presidential impeachments.

Was what Trump did even impeachable?

In their legal brief, Trump’s lawyers argue that the president was simply “exercis[ing] his First Amendment rights under the Constitution to express his beliefs that the election results were suspect” and that his constitutional right to free speech protects him from impeachment. This legal defense is tenuous, Bowman said: “One can say things that perhaps the First Amendment wouldn’t allow us to jail you for that would potentially violate the oath of the office.” Kalt pointed to an analogy from a famous First Amendment case. If Trump “put on a Nazi uniform and marched through Skokie, Illinois,” his speech would be protected under the First Amendment, but it would be hard to argue that that would not be an impeachable offense.

The challenge is that the Constitution provides for impeachment in cases of “Treason, Bribery, or other high Crimes and Misdemeanors” but fails to define what a “high crime and misdemeanor” is. The founders made clear in their debates that an offense had to be committed and that impeachment for mere “maladministration” would not suffice. But they did not go into further detail.

Some criminal acts don’t qualify for that standard while some acts, which are not illegal, are impeachable. Infamously, Gerald Ford, while a Republican member of Congress, argued on the floor of the House that impeachable offenses are “whatever a majority of the House of Representatives considers them to be at a moment in history.”

Are presidential impeachments now normal?

The second impeachment trial of Donald Trump will start just over a year after the first one ended. There will have been four presidential impeachment trials in the United States Senate in American history. Two of them will be of Donald Trump. Has this become the new normal?

Certainly, impeachment as a political tool has become more common. With Rep. Marjorie Taylor Greene’s introduction of articles of impeachment against Joe Biden on his first day of office, every president in the past four decades — save for Barack Obama — has now had formal articles of impeachment introduced against them. Two of those presidents, Bill Clinton and Donald Trump, have faced Senate trials as a result of being impeached.

It’s hard to predict what precedents will be set from the multiple impeachments of Trump, which are likely to end in multiple acquittals. The rise of extreme polarization in American politics, Kalt said, “has made it easier to get a majority to support impeachment in the House, but even harder to get two-thirds in the Senate.” As a result, “there have been three futile impeachments where the House doesn’t care if they get conviction.”

The recent frequency of impeachment filings may just be a symptom of broader issues. As Bowman noted, “impeachment is a weird little corner of the Constitution, but you look at why it’s there and how it’s been used, it often tells you a lot about the health of the rest of the structure.”

More of your impeachment questions, answered

Unclear on the timeline of the second impeachment, how we got here, and the players involved? Read these stories:

  • Trump is the most impeached president in American history. How did that happen? Here’s a review.
  • A Republican senator’s tweet about the impeachment highlights America’s epistemic crisis. Here’s what we can learn from it.
  • This map from the New York Times makes painfully clear how divided America really is.

Ben Jacobs is a politics reporter based in Washington. Follow him on Twitter at @bencjacobs.

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