Is the impeachment trial of now private-citizen Donald Trump in the United States Senate constitutional? Democrats of course say yes; Republicans of course say no.
But Republicans want to have it both ways. Once the U. S. House of Representatives impeached Trump on Jan. 13, the Republicans, who controlled the Senate at the time, could have called the Senate back into session immediately and held Trump’s trial. Instead, the Republicans kept the Senate in recess and it did not reconvene until Jan. 19, when it was too late to hold and complete the trial and remove Trump from office before his presidential term ended. Now they’re trying to say Trump cannot be tried because he is no longer in office, when it is their inaction that resulted in the trial being held now instead of when Trump was still president.
The nation’s legal and governmental system runs on precedent, and there are several precedents for trying an impeached official after he leaves office. Republican Senators are aware of this, even though 45 of them voted that the trial is unconstitutional. Many of them are lawyers, so they know better.
In 1861 Federal judge West Humphries resigned his judicial post to join the Confederacy. In 1862, the House impeached Humphries and the Senate convicted him and disqualified him from holding federal office — a year after he had left federal office anyway.
In 1876, Secretary of War William Belknap resigned because of corruption charges, but even after his resignation the House impeached him, and a majority of the Senators voted to convict, although the vote was short of the 2/3 mandated by the US Constitution so Belknap was technically acquitted.
In a more complicated situation, in 1797 the U.S. Senate expelled North Carolina Senator William Blount for alleged treason. The House impeached Blount a year later and the Senate began his impeachment trial, but it ended on a technicality when the Senate ruled that a Senator was not a “civil officer” (a constitutional mandate) subject to impeachment. But that 1798 Congress established the precedent that a civil officer, which the President definitely is, could be impeached and tried after leaving office; even Blount’s lawyer agreed. Precedents set by the 18th Century Congresses have traditionally been treated as sacrosanct in American jurisprudence.
Legal precedent is clear: Trump’s trial after leaving office is allowed by both the constitution and history. Bang that gavel, Justice Roberts!