Can the Senate convict on impeachment after Trump's term ends?

January 8, 2021 11:45 AM

See below for the full question.

So the House is making moves to proceed with the impeachment process. Normally if the House impeaches a president, it goes to the Senate, which goes through its own process and then votes on whether or not to convict.

But we're in a weird situation with only 12 days left in Trump's term, after which he leaves office anyway. Let's say the House does impeach, and does so before the end of Trump's term. Does the Senate have to act on that, even if it does so after Trump leaves office? It wouldn't be a moot point after January 20, as a conviction would mean that Trump couldn't run for president again.

Basically, I'm wondering if it's a meaningful option for McConnell to just run out the clock if impeachment happens quickly.

posted by Mechitar to Law & Government (11 answers total)

Turtle doesn't matter now. The session of congress that ended this week was his last as majority leader.
posted by Dashy at 11:53 AM on January 8, 2021 [2 favorites]

If the legal types I follow on Twitter are to believed (and I like to think they're a cut above the #resistance game theory grifter crowd) then yes, the Senate impeachment trial can end after Trump's term ends.

You can make the case that this should not be a priority given the other legislative priorities, but you can't make the case that it would be pointless, since a successful impeachment bars the defendant from holding public office in future.
posted by caek at 12:01 PM on January 8, 2021 [7 favorites]

I was just corrected in the megathread -- Turtle is ML until the Georgians are certified and sworn in. Which is soon, and one would hope soon enough, but.
posted by Dashy at 12:22 PM on January 8, 2021

Response by poster: Thanks for the answers, guys. I didn't realize - and should have! - that McConnell's (aka Turtle, heh) majority leader status isn't linked to Trump's term.
posted by Mechitar at 12:27 PM on January 8, 2021

NYT:

History gives little guide on the question of whether a president can be impeached once he leaves office, and House lawyers were racing to understand the legal and constitutional issues.

There is precedent for doing so in the case of other high government officers. In 1876, the House impeached President Ulysses S. Grant’s war secretary for graft, even after he resigned from his post. The Senate at the time considered whether it still had jurisdiction to hear the case of a former official, and determined that it did. Ultimately, the secretary was acquitted.

Michael J. Gerhardt, a constitutional scholar at the University of North Carolina who testified in the last impeachment proceedings, wrote on Friday that he saw no reason Congress could not proceed.

“It would make no sense for former officials, or ones who step down just in time, to escape that remedial mechanism,” he wrote. “It should accordingly go without saying that if an impeachment begins when an individual is in office, the process may surely continue after they resign or otherwise depart.”

posted by caek at 1:36 PM on January 8, 2021 [4 favorites]

This WaPo fact check (during a 2019 wingnut "let's impeach Obama!" fad) says it's an open question.
posted by mark k at 1:36 PM on January 8, 2021

The other important reason to impeach is so that he is not entitled to a pension and a state funeral as a former president.

Just imagine Cruz or Hawley giving a eulogy surrounded by all that state regalia - it would be like Gollum finding the ring. My presciousssss fasssscists...
posted by dum spiro spero at 2:37 PM on January 8, 2021 [12 favorites]

Right now it’s 51-48 for the Republicans. (Perdue’s seat is empty.) With the Georgia senators, it will be 50-50.

Pence can break ties until the 20th, when Harris will be able to break ties and Trump will be out of office. But neither presides over an impeachment trial of a current President; Chief Justice Roberts does.

Removal from office becomes moot, but if they convict they have the option (it’s not automatic) to bar from further office.

I would expect the trial to lose momentum if it goes past the inauguration though, and probably get dismissed so they can start confirming Biden’s appointments instead.
posted by Huffy Puffy at 4:06 PM on January 8, 2021

McConnell issued a statement tonight outlining how the Senate would proceed with a trial, were the House to impeach. Right now the Senate is in recess and "will not reconvene for substantive business until Jan. 19." For them to return sooner would require unanimous consent, which will not happen.

I read elsewhere that the two new Georgia senators could be seated as early as January 22, at which point Schumer becomes Majority Leader. Therefore, if the House does impeach, I wouldn't expect the trial to begin until the 22nd at the soonest. This doesn't exactly answer your question, but I haven't read anything definite about whether a trial can be held after he leaves office. And of course, a trial is time consuming and would take away from important business such as confirmations. So it's a difficult situation all around.
posted by daikon at 6:44 PM on January 8, 2021

Here's a NY Times article that answers a lot of questions about having an impeachment with only 12 days remaining.

It says: "History gives little guide on the question of whether a president can be impeached once he leaves office, and House lawyers were racing to understand the legal and constitutional issues."

Lots of other good information here.
posted by daikon at 8:03 PM on January 8, 2021

I read elsewhere that the two new Georgia senators could be seated as early as January 22
The 22nd is the latest date the elections can be certified by the state. Counties have until the 15th and after that the SoS has another 7 days to certify. They could be ready to their seats earlier than the 22nd, if things get timed right.
posted by soelo at 11:41 AM on January 9, 2021