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Friday, January 08, 2021

How Impeachment Might Play Out

Let's say the House of Representatives impeaches the President next week. There will be no Senate trial before January 20th. Will there be a trial after January 20th? I don't know, but I doubt it. It might depend, in part, on whether the President tries to pardon himself. 

The Senate could end up deciding that the High Court of Impeachment simply lacks jurisdiction over an ex-President. While there are precedents for trying ex-officials who were impeached, those examples can be distinguished from an ex-President. The advantage of this "no jurisdiction" approach is that there would no decision on the merits. The President would not be acquitted. He will stand impeached without a judgment for all time. Maybe there is merit to that unique status.

Posted by Gerard Magliocca on January 8, 2021 at 08:15 PM | Permalink


The disadvantage is that there will be no real liability to disqualification and the senators -- including those who in some part were part of his conspiracy --- would avoid voting on the record regarding the merits.

The avoidance of acquittal is a mixed bag at best. If there is actually some chance we will have Republican votes for conviction other than Mitt "the Glare" Romney, maybe let's say a 60-40 ultimate final vote, that would be a serious statement.

The implication would likely be that more than 10 Republicans really wanted to convict but didn't for partisan political reasons. As before, any "acquittal" will be tainted by the process used, here waiting until after he left office to try him being up there.


The punishment still open after he leaves office by the way brings up the 14A provision that the author here has written about. Congressional legislation perhaps is warranted here if the CJ Chase "need enabling legislation" argument is taken as the rule. It is noted, e.g., one account flagged someone involved who was a member of the military. The breadth of the language would cover minor offices. It's something to consider.

Posted by: Joe | Jan 9, 2021 12:53:03 PM

The second scenario you describe is possible in theory. The Clinton impeachment was carried over from one Congress to the next.

Posted by: Gerard | Jan 8, 2021 8:53:56 PM

Would this route disqualify a president from running again?

If it didn't, would this result in a strange situation where, if the president so impeached won a second term, the senate would hold a trial on the pending impeachment charges after the president was sworn in? Or would those impeachment charges no longer be valid since the congress that introduced them was no longer sitting?

Posted by: thegreatdisappointment | Jan 8, 2021 8:39:21 PM

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