President Trump’s term will expire before the Senate gets a chance to consider the House indictment, although work is still underway to try him and possibly ban him from re – election. This raises questions as to whether he can even be tried on charges, because he will already move out of the White House – and whether he will still enjoy the benefits that former presidents provide if the Senate finds him guilty.
Senate Majority Leader Mitch McConnell has no plans to reconvene the Senate to hold Trump’s trial before his January 20 term ends; it would only take place once Joe Biden took over the presidency, which according to some legal experts is a legitimate gray area.
“I do not think the founders ever thought that you would take a president to indisputable behavior near the end of his term that he would be charged as president,” said Stephen Vladeck, a constitutionist. expert and professor at the University of Texas School of Law.
Can the president be charged after leaving office?
Lawyers have debated whether it is constitutional to prosecute a former president.
In a Washington Post-trained conservative former U.S. appellate court, Judge J. Michael Luttig does not say so, arguing that the Constitution only allows the Senate to convict a sitting president.
“As soon as Trump’s term ends on January 20, Congress will lose its constitutional authority to continue prosecution proceedings against him – even if the House has already approved articles of indictment,” Luttig wrote this week.
But Vladeck says that another section of the Constitution – Article I, Section 3, Clause 7 – poses two questions to the Senate when it says: ‘Judgment in cases of accusation will not extend beyond removal from office, and inability to hold and enjoy any office of honor, trust or profit among the United States. ”
“The Constitution believes that the Senate can do two different things when an officer is indicted. It can remove them from office, but it can also disqualify them from holding future office,” he told CBS News. “The expiration of Trump’s presidency raises one doubt, but not both.”
Vladeck believes that the removal of the office and the lifelong bar are separate and independent of each other. He argued in a New York Times statement that an official could not evade the step of disqualifying him or her from a future office by simply resigning – as Secretary of War William Belknap did in 1876, knowing that he on the verge of being ousted by an accused. the House. The Senate, although he eventually voted to release him, first passed a resolution affirming that he had the authority to try him, despite his resignation.
The Senate has also traditionally separated a vote to convict an official on a charge of indictment from a vote to prevent him or her from holding office in the future. Eight people have been convicted on charges of indictment, but only three are incompetent to hold the future office.
If the Senate finally convicts Trump of the indictment sent by the House, it could take a second vote to prevent him from holding future office. While the first vote would require two-thirds of the senators – 67 – to convict and remove him, the second vote to ban him from public office would only require a simple majority because the Constitution does not require a higher threshold. do not claim.
Will Trump receive his annual allowance, office space, staff and travel funds if convicted?
Although the House has now voted for the second time to accuse Trump, he will not automatically lose the benefits enjoyed by former presidents.
“An accused president who is not convicted by the Senate loses no benefits,” said Allan Lichtman, an American historian at the American University.
The Former Presidents Act, passed in 1958, gives every living former president the right to these benefits:
- A lifelong federal pension equal to the salary received by the head of an executive division (in 2020 it was $ 219,200);
- Funds for the acquisition and furnishing of office space;
- $ 150,000 per year to employ staff for the first 30 months after the presidency and $ 96,000 per year thereafter;
- Up to $ 1 million a year for ‘security and travel expenses’ (plus an additional $ 500,000 for a former first lady).
The law also contains three criteria that determine what it means to be a former president who qualifies for these benefits:
- Who would have held the office of President of the United States of America;
- Whose service in such office has been terminated other than by removal under Article 4 of Article II of the Constitution of the United States of America; and
- Who then does not currently hold such an office.
It is specifically written to disqualify a president who is indicted by the House and convicted by the Senate. Former President Nixon received his benefits because he resigned before an indictment and removal could take place.
What happens if a president is convicted after leaving office?
“There is now no scenario where Trump’s service will be terminated by the Senate,” Vladeck said. “Even if the Senate finally votes to convict, I actually think Trump would have a pretty good argument that he is still a qualifying former president, at least based on the text of the law, and that would fix the matter. . ”
Lichtman drew the same conclusion from a close reading of the statute, although he said that was probably not the intention of Congress when he drafted the law.
‘I do not think they have considered a situation like this, where the indictment of the House comes so late that a trial could take place after the president is in office because he has been defeated or retired. “But I definitely think the intent of the law was that if you are guilty of major crimes and offenses, you do not deserve the fringe benefits,” he said.
This creates a legitimate gray area between the way the law is written and what Congress intended. But Vladeck said the only way the case should end up in court is for the General Services Administration to refuse to treat President Trump as a former president, and that Mr. Trump must sue them in return.
“I just do not see it happening,” he said. “Even if Trump is convicted, I assume the GSA will treat him like a former president based on this particular reading of the law.”
What about his protection of the secret service?
In 1994, the federal law, which provided lifelong secret service protection to former presidents and their spouses, was amended to limit the protection to ten years for any president who takes office after January 1, 1997. In 2012, Congress passed a law called the former presidents. Protection Act, which restored lifelong protection. President Obama, who along with his predecessor, President George W. Bush, lost coverage while he was still alive – signed the bill in early 2013.
The legislation regulating the protection of the secret service merely authorizes the agency to protect “former presidents”, but does not explicitly define a former president as the former presidential law does. The conviction after the presidency or not, it probably means that Mr. Trump will retain his protective details.
Will he receive a presidential library?
The Former Presidents Act does not provide funds for presidential libraries; it is created with private donations. As mnr. Trump wants to raise money for a library, he can.
Even if he does not build one, the American archivist may legally acquire land and facilities to create an archive of his presidency.
What if Congress changes the law around former presidents?
Congress may decide to amend the Former Presidents Act to specify that a president who is convicted at the end of his or her term is not considered a former president and is therefore not entitled to the pension, staff , workspace and travel benefits included.
But once the law was passed after a Senate trial in which Trump was convicted, Vladeck said Trump could argue that the law could not be constitutionally applied to him because it did not exist when the Senate considered his case. do not have.
Steven Portnoy and Arden Farhi contributed to this article.