Photographer: Chip Somodevilla / Getty Images
Photographer: Chip Somodevilla / Getty Images
Donald Trump’s second indictment will be the first to extend beyond a president’s term, creating a new legal question that could ultimately require a Supreme Court ruling.
The answer is not certain, but history has bad news for Trump: a sparse but consistent line of lower-level accusations in the past suggests that the Senate retains the power to execute him, even after his term ends. . If convicted, the Senate could take a second vote to prevent him from running again.
A number of jurists say the drafters of the Constitution did not intend to release presidents in the waning days of their tenure to tackle serious consequences.
“The drafting of history, accusation, and basic constitutional design all clearly indicate the constitutionality of the trial of a former president,” said Kate Shaw, a professor of constitutional law at the Cardozo School of Law.
Donald Trump leaves the White House for Texas on January 12.
Photographer: Drew Angerer / Getty Images
The Constitution does not explicitly say whether a Senate hearing can take place after a president leaves office. Article II, Article 4, states that the president and other officials “shall be removed from office” if convicted. Article I, section 3, states that the remedies of the Senate in future shall be limited to the removal and incapacity to hold office.
But the context in which the Constitution was written gives some clues. The 1787 Constitutional Convention took place when the British Parliament indicted and tried William Hastings, the former Governor-General of India.
What’s next as Trump’s accusation to the Senate: Quick recording
And the practice since then indicates a broad understanding that the Senate retains jurisdiction, according to Brian Kalt, a professor at Michigan State University College of Law and author of a 2001 article on the legal review of so-called late impeachments.
‘In several cases, the “House and Senate went on to try and try people who have already left office, and in one case the Senate took a specific vote to that effect,” Kalt said.
Congress first called in the accusers in 1797, when House Senator William Blount was accused of plotting to overthrow the Spanish-controlled territories of Florida and Louisiana. The Senate held a hearing, though it had already suspended Blount. Senators eventually acquitted him on the separate grounds that he was not an ‘officer’ subject to the indictment.
In 1876, the Senate voted 37-29 to have the power to try former war secretary William Belknap, though he resigned just when the House was ready to charge him with accepting setbacks. The Senate finally acquitted Belknap.
In several cases since then, including the 2009 case of former U.S. District Judge Samuel Kent, lawmakers have said the resignation of the official has no bearing on the Senate’s right to hold a trial, Kalt and Professor of Law at the University of Missouri, Frank Bowman wrote in the Washington Post this week.
Judge’s view
A prominent retired judge of the Federal Court of Appeal, J. Michael Luttig, argued this week that the Senate could not try Trump after he left office. Luttig wrote in the Washington Post that the purpose behind the indictment was to prevent an official from using a government position to further damage the country.
“The concept of constitutional indictment presupposes the indictment, conviction and removal of a president who at the time of his indictment is an incumbent in the office from which he is being removed,” Luttig wrote. But he added that history provides some support for the argument that the Senate could hold trial after Trump left office.
Luttig, who was a shortlisted candidate for the Supreme Court when Republican George W. Bush was president, recently advised Vice President Mike Pence that he did not have the authority to determine the outcome of the election during the congressional counting session. to change, according to the New York Times.
Judicial Power
Gregg Nunziata, a former Republican lawyer for the The Senate Judiciary Committee tweeted on Wednesday that “some conservatives are being misled by Judge Luttig.”
“The power of accusation contains the power to disqualify for life,” Nunziata added. “If officials simply resigned to evade this important punishment, it would be in vain.”
Regardless of the merits, it is not clear that the Supreme Court will even consider a Trump challenge against Senate authority. In 1993, the court said it was a “political question” – and therefore outside the jurisdiction – when an accused judge objected to the use of a Senate committee to hear evidence as part of his trial.
The court referred to the Constitution’s consent to the Senate to “hear” accusations, and the term said the term “has insufficient precision to afford any standard of review.”
Trump can counteract by pointing to a 1969 decided that Representative Adam Clayton Powell Jr. disputed the refusal of the House to seat him. The fight focused on the constitutional provision that allows the House and Senate to assess their members’ ‘qualifications’.
The Supreme Court said the doctrine on political issues does not apply because the case ‘does not only require an interpretation of the Constitution’.