Less than a week before President Trump’s term ends, the House has voted to impeach him for the second time. But the Senate is in recess until January 19, and Senate Majority Leader Mitch McConnell on Wednesday rejected the call for an emergency session for Trump’s impeachment trial. That means a trial wouldn’t take place until Trump is out of office.
Can you even impeach a former president?
The constitutionality of impeaching a former president is murky. While you obviously can’t remove someone from a position they don’t currently hold, senators can hold a separate vote to prevent that person from ever seeking public office again.
Some experts believe a former president, as a private citizen, would be exempt from any process geared toward public servants; others say the penalty of being barred from holding office should clearly apply to former officials as well. And, for what it’s forth, many top lawmakers over the years have supported the impeachment of former presidents. Former Pennsylvania senator Arlen Specter, for example, once suggested that Bill Clinton be re-impeached for pardoning Marc Rich, a wealthy Democratic donor and fugitive, on his last day in office. More recently, Florida Rep. Matt Gaetz, a close Trump ally, said he believed former president Barack Obama should be impeached.
Has it ever happened before?
There is some precedent here: In 1876, the Senate held an impeachment trial for former Secretary of War William Belknap. During that trial, the Senate voted — by a simple majority rather than the usual two-thirds required for any impeachment proceedings — that indeed it did have the power to try a former official. It’s quite possible that the Senate will hold a similar vote in the weeks ahead, to determine by simple majority whether it has the authority to convict Trump once he’s out of office.
Can Trump challenge Congress’s determination?
Yes. Should the Senate vote in favor of its jurisdiction, Trump could challenge the decision in the federal court system. There’s reason to think a Trump legal challenge will fail. In 1992, the Supreme Court said it wouldn’t second-guess the Senate’s decisions regarding impeachment proceedings. Still, there’s no broad consensus about what the likely outcome is. Some argue the Supreme Court can simply assume total autonomy on the Senate’s part to carry out an impeachment trial, and others think the court will need to issue a clear ruling on the question of whether the Senate has the power to ban a former president from holding office in the future.
So, assuming that the Senate moves forward with an impeachment trial, what are the odds he’s convicted?
You’ve probably read the recent report in the New York Times that Senate Majority Leader McConnell is pleased about this second impeachment and hopes it rids him of Trump once and for all. Still, it seems unlikely that the Senate will deliver the two-thirds vote needed to actually convict Trump. Even with a Democratic majority, the Senate would still need 17 Republicans to vote to convict Trump. And as Vox explains, nearly every Republican senator represents a state that Trump won in both 2020 and 2016, meaning their constituents probably haven’t soured on him. In other words, it’s likely Trump will be acquitted by the Senate a second time.
After that, it can move on to a vote about whether to prevent him from again seeking or holding federal office.
Will a Senate impeachment trial interfere with President-elect Biden’s agenda?
Biden is certainly worried it might. The president-elect has reportedly asked whether the Senate could “bifurcate” its schedule and spend half the day on impeachment and the other half passing legislation he’s pushing for. Incoming Senate Majority Leader Charles Schumer seemed unsure whether that was in fact possible, and deferred the matter to the Senate parliamentarian, whose office has so far declined to comment.
Still, some officials who were involved in past impeachment proceedings expressed their skepticism that such an arrangement would be possible, particularly if Trump mounts legal challenges to the Senate’s impeachment vote. All of which is to say, Trump probably won’t be done dominating the news cycle even once he’s out of office.