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Can the Senate Try Private Citizen Trump after He Leaves Office?
By Alan M. Dershowitz
Originally Published by the Gatestone Institute.
Some pundits and Senators have suggested that a former President can be impeached and tried as a private citizen. I don’t know if they think this applies to all former presidents, including Clinton, Carter, Bush and Obama, or whether it is applicable only to a president, like Trump, who has just recently left office. But either way, they are simply wrong as a matter of the Constitutional text and meaning. The relevant text of the Constitution reads as follows: “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Article II, Section 4)
Another provision of the Constitution says that an impeached president (or other office holder) may be disqualified “to hold and enjoy any office….” So some are arguing that the Constitutional provisions regarding impeachment should be interpreted to apply to any person who may be eligible to run in the future. Such an absurd interpretation of the Constriction would literally allow millions of ordinary citizens over the age of 35 to be impeached and disqualified from future office holding.
This absurd reading of the Constitution shows how far people are willing to go to prevent President Trump from becoming a candidate in 2024. Such an interpretation of the Constitution would render the impeachment provisions utterly meaningless.
The Framers of the Constitution debated impeachment extensively. It is clear that they intended it to apply only to sitting presidents and other office holders and not to private citizens who previously held that office.
So, there can be no real dispute that President Trump could not be impeached and tried once his term ends.
But what if the House of Representatives impeached him while he was still president, but the Senate tried him after his term had concluded. Obviously the Constitution does not explicitly consider or deal with that unanticipated issue. Nor did the Framers consider it. The Framers did, however, regard impeachment and trial as part of one single process, culminating in removal from office. And so, if removal from office is no longer a possibility it would seem that Congress would have no jurisdiction to impeach.
Let us be clear about what those who would impeach and remove President Trump are really trying to do. They know that under the Senate timetable, there is no realistic possibility that a Senate trial could be conducted and completed before January 20 at noon. What they want to do is to impeach President Trump without giving him an opportunity to defend himself at a Senate trial. This would be analogous to a prosecutor deciding to indict someone and then deny him a trial at which he could disprove his guilt or prove his innocence. That would be a core denial of due process, as would impeaching a president based on a majority of the House while denying him a trial in the Senate that requires a two-thirds super majority to remove.
President Trump’s opponent are so angry at the President for his volatile speech — which was misguided and wrong but completely protected by the First Amendment — that they are prepared to tear up the Constitution in an effort to remove him by any and all means. They are prepared to ignore the First Amendment, distort the 25th Amendment, stretch the criteria for impeachment, and permit House impeachment without a Senate trial.
These efforts, if successful, would do more damage to the rule of law than the horrendous mob did when they criminally stormed the Capitol and inflicted harm to life, property and democracy. What these rioters did deserves serious punishment and it will likely be forthcoming. But the constitutional rights of all Americans should not be compromised based on that terrible singular incident.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. His new podcast, “The Dershow,” can be seen on Spotify, Apple and YouTube. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.