A former federal judge says that any plans to hold President Donald Trump’s Senate impeachment trial after President-elect Joe Biden is sworn into office would be unconstitutional.
Michael Luttig, a former judge of the U.S. Court of Appeals for the 4th Circuit, wrote an op-ed in The Washington Post on Tuesday arguing that holding Trump’s impeachment trial after he is already out of office is unconstitutional.
The House appears set to pass an article of impeachment against Trump to send to the Senate for trial. The Senate is not scheduled to be back in session until Jan. 19, a day before Biden will be sworn into office, leaving very little time for the Senate to hold a trial on the articles and vote on removing Trump from office before his term ends.
“It appears that even if the House of Representatives impeaches President Trump this week, the Senate trial on that impeachment will not begin until after Trump has left office and President-Elect Biden has become president on Jan. 20,” Luttig writes. “That Senate trial would be unconstitutional.”
On Sunday, House Majority Whip James Clyburn (D-SC) floated the idea of waiting until well into Biden’s presidency before holding a vote in the House on the article of impeachment in order to give Biden a chance to work on his agenda before the Senate takes up the impeachment trial.
“We’ll take the vote that we should take in the House, and [House Speaker Nancy Pelosi] will make the determination as to when is the best time to get that vote and get the managers appointed and move that legislation over to the Senate,” Clyburn said in an appearance on CNN.
“It just so happens that if it didn’t go over there for 100 days, it could – let’s give President-elect Biden the 100 days he needs to get his agenda off and running, and maybe we’ll send the articles sometime after that,” he added.
According to Luttig, Clyburn’s suggestion could never take place under the Constitution. As the former federal judge writes:
Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.
Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.
The reason for this is found in the Constitution itself. Trump would no longer be incumbent in the Office of the President at the time of the delayed Senate proceeding and would no longer be subject to “impeachment conviction” by the Senate, under the Constitution’s Impeachment Clauses. Which is to say that the Senate’s only power under the Constitution is to convict — or not — an incumbent president.
Related: Constitutional Law Scholar Alan Dershowitz: If Democrats Impeach Trump, It ‘Will Not Go To Trial’