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Friday, January 08, 2021

An Impeachment Trial for an Ex-President

One possibility is that the President will be impeached again. Suppose he is but the trial does not occur until after January 20th. There is precedent (though not that much) for impeaching and convicting ex-officials. This probably makes sense, though, only if the Senate imposes the disqualification penalty for future office. (Otherwise, what's the point?) And there is an open question on whether disqualification  can be imposed on future occupancy of the White House. (I would say yes, but others say no.)

Here's another wrinkle. Presumably the Chief Justice need not preside over the trial of an ex-President. He only must do so for the trial of a President. Thus, Vice-President Harris would preside.

UPDATE: I'm not so sure about the last point now. If the impeachment is for something the President did, maybe that carries over to the question of who should preside over the trial. Moreover, the Vice-President and the Senate may both prefer that the Chief Justice preside. Since he arguably can, maybe he will have to.


Posted by Gerard Magliocca on January 8, 2021 at 09:18 AM | Permalink


A major concern here is what to do with occupants of this office who commit acts after a failed re-election, especially if they are still eligible for re-election in the future. Many said the the 2020 elections would be the ultimate test for Trump. What happens when he commits acts after it? Criminal charges even w/o a self-pardon is of limited realistic restraint.

The disqualification provision is broader as well. So, e.g., if applied, it might have the result that they couldn't having some leading executive position in a future administration. I have my doubts some future president will want Trump to have some federal position, but it very well can apply to someone else.

As to the last point, I think it safest to assume the rule applies to the position, not to if the person is current holding it. The text is not totally clear. "The President" is also here being impeached for acts at the very least during the time when the person exactly was in office, even if the impeachment occurs afterwards. The general value of having a Chief Justice preside for such an impeachment largely remains.

Merely leaving office here is of limited value.

Posted by: Joe | Jan 8, 2021 3:01:14 PM

@Prof. W., it seems like all the ex-presidential fringe benefits would be conferred by statute. So, if it doesn't exist already, an exclusion could be added via ordinary legislation for anyone who was convicted in the Senate. And I don't agree with Prof. M. that, at least for the Secret Service component, that it "does not amount to much." For someone like Trump, SS protection seems pretty significant.

@Prof. B., many folks have been saying they will take the belt-and-suspenders approach of a self-pardon combined with a resignation/Pence pardon. I would also like to see impeachment, if an "overtime" impeachment past the end of the term is viable, because, as folks have said, that still gets you the disqualification remedy.

@Prof. M., if the impeachment goes into overtime, with Harris having assumed the VP position, and the Senate vote ends up with a 34-66 "tie", can Harris supply the needed 67th vote?

Posted by: hardreaders | Jan 8, 2021 10:26:32 AM

The Capitol riots have produced growing cries that Donald Trump must not be permitted to serve out his remaining term as president, and that he must be removed from office forthwith, either by operation of the 25th Amendment, or by impeachment.

At the same time, as threats of criminal prosecutions from a variety of sources grow stronger, it is reported the Trump is considering pardoning himself, something he has long maintained he was the authority to do.

But all these conjectures have major problems. Here’s an equally probable scenario based upon two recent historical precedents: Ford-Nixon and Agnew’s resignation

It appears unlikely, despite the outrage over the riots and the President's actions regarding them, that Vice President Mike Pence and a sufficient number of cabinet officials would use the 25th Amendment to remove him from office, especially for this short period of time.

Time would also be a problem in seeking to impeach Trump, and to have a full trial in the Senate, before his term would end naturally, and it is also unlikely that a two-thirds supermajority of senators would vote to remove him from office.

Impeachment after Trump leaves office probably is not worth the effort.

A self pardon also has drawbacks since a court might well rule after he left office and was charged with a felony that a sitting president cannot issue a pardon to himself, especially an blanket pardon for any crimes Trump may later be accused of.

Moreover, the issuance of such a self pardon could make it more likely that he would be charged with a federal crime, since a Justice Department would not want to establish - by letting the precedent go unchallenged - that a president is immune from prosecution while in office, and can then obtain permanent immunity for all federal crimes simply by issuing a pardon to himself.

An equally likely scenario is that Pence would be very eager not to have Trump remain in office but, recognizing the problems of using the 25th Amendment or the impeachment process to achieve that goal, would instead offer Trump - author of "The Art of the Deal" - a deal he might find hard to resist: Trump would resign immediately in return for a blanket pardon by Pence.

Posted by: LawProf John Banzhaf | Jan 8, 2021 9:39:02 AM

On the other hand, the chief justice presides, for crimes and alike, been committed as (or while) sitting president. So, that element would yet necessitate the chief justice, and not the VP.

Posted by: El roam | Jan 8, 2021 9:36:49 AM

Maybe, but that does not amount to much.

Posted by: Gerard | Jan 8, 2021 9:25:17 AM

Does a former President receive things (salary, staff, protection) that could be taken away as punishment for impeachment?

Posted by: Howard Wasserman | Jan 8, 2021 9:21:04 AM

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