The Senate is on the cusp of the historical second Senate impeachment trial of previous President Donald Trump.

On Monday, your home provided its article of impeachment to the Senate. On Tuesday, the members of the House who will act as trial lawyers will be sworn in, with the trial set to begin Feb. 8.

We have likely all made up our minds already whether Trump’s habits increases to the level of an impeachable offense.

The question is uncomplicated– the sole short article of impeachment declares that Trump incited an insurrection. All of us saw the insurrection play out live on television, computer and phone screens across the country. We all saw our elected authorities using gas masks and sheltering in location in the people’s house, the Capitol. All of us saw the speech Trump provided moments before the insurrection. We have most likely all comprised our minds currently whether Trump’s habits rises to the level of an impeachable offense.

However while the facts feel relatively clear, the next two weeks offer Trump and his GOP allies an opportunity to plan. And a main Republican defense is currently taking shape: that the Senate does not have the constitutional power to hold the trial due to the fact that Trump is no longer in workplace.

” Our members, regardless of what they might think of the merits, simply believe that this is a workout that actually isn’t grounded constitutionally and, from a practical viewpoint, just makes no sense,” Senate Minority Whip John Thune, R-S.D., informed Politico.

This is a demonstrably weak argument. The Senate not just has the constitutional right to try Trump; it has a constitutional task to do so.

Let us begin with the text of the Constitution itself. Article II, Area 4 provides that the president and other federal authorities based on the clause can be impeached for treason, bribery or “other high criminal offenses and misdemeanors.” This is no less real if the impeachable offense occurs at the end of a president’s term or right before a president were to resign. In this case, it might be even more immediate to impeach and found guilty Trump due to the fact that his supposed actions– working to overturn a free and fair election– threaten the integrity of any democracy’s main method of getting rid of authorities: elections.

The impeachment stipulations are an essential guardrail against transgressive habits by public officials. Senators would relinquish their duty to “bear real faith and allegiance of the Constitution” if they chose to disregard or forgive high criminal offenses and misdemeanors simply since they occurred toward the end of a political leader’s term. There are no exceptions or caveats.

Besides the textual proof, standard reasoning determines that previous officials are not exempt from impeachment.

Besides the textual proof, basic reasoning dictates that previous officials are not exempt from impeachment. Otherwise, what would stop any main facing impeachment from merely resigning– or waiting until the last possible minute prior to engaging in the impeachable offense? Later on, if they so picked, the official could constantly run for workplace again.

There is precedent here. In 1876, War Secretary William Belknap resigned minutes prior to his impeachment in the House. The end run failed, and he, as a former federal official, faced a Senate trial, in which he was acquitted.

The Constitution does state that there are 2 possible punishments for impeachment: removal and disqualification from holding another federal office. Not “removal and/or disqualification”– elimination and disqualification. The Senate would stop working in its task to support the Constitution and apply the impeachment stipulations if it failed to hold a trial and neglected the accessibility of this type of punishment.

As Short Article I, Area 3 notes: “Judgment in Cases of Impeachment shall not extend even more than to elimination from Office, and disqualification to hold and enjoy any Workplace of honor, Trust or Profit under the United States.” If two-thirds of the Senate votes to convict Trump, only an easy majority vote would be required to disqualify him from additional federal workplace.

The prospect of disqualification is essential here. If the Constitution’s only punishment were elimination from workplace, the GOP’s constitutionality argument might have more benefit. However as the text reads, senators would skirt their constitutional responsibilities by stopping working to evaluate both possible repercussions.

Ultimately, constitutional penalties, like criminal ones, serve both to punish and to prevent misdeed. The impeachment stipulation does not include an exception for an impeachment that occurs late in a president’s term or that stretches into the next president’s term. This would perversely give presidents rewards to behave specifically terribly ideal prior to they are about to leave office. Interpreting the Constitution’s phrasing differently would serve just to protect prospective perpetrators from responsibility.

In Trump’s case, the best and maybe only way to send out a message to future authoritarian politicians is to make it clear that you can not attempt to weaken democracy and get away with it. In this context, barring Trump from running for office once again– which he currently has actually threatened to do– is just the Senate’s satisfying its obligation to support our governing document.

In other words, the Constitution not just allows the Senate to hold Trump’s second impeachment trial– it mandates it.

Jessica Levinson

Jessica Levinson, a teacher at Loyola Law School, is the host of the “Death Judgment” podcast. She is likewise the director of the Public Service Institute at Loyola Law School, co-director of Loyola’s Journalist Law School and previous president of the Los Angeles Ethics Commission.


Please enter your comment!
Please enter your name here