Impeachment: Republicans say ex-President Trump can't be tried but many experts disagree

WASHINGTON – When the Senate gathers Tuesday for the second impeachment trial of former President Donald Trump, Republicans are expected to hammer away at a longstanding argument to undermine the case before debate even begins. 

Never mind the charges against Trump for his role in allegedly inciting a mob that stormed the U.S. Capitol on Jan. 6, GOP senators and Trump's lawyers say, because the trial itself is unconstitutional.

"I'm ready to end the impeachment trial because I think it is blatantly unconstitutional," Sen. Lindsey Graham, R-S.C. and an ally to Trump, asserted Sunday on CBS' "Face the Nation," repeating the word "unconstitutional" six more times. "This impeachment, in the eyes of most Republicans, is an unconstitutional exercise."

Trump's attorney's detailed a similar argument in a 78-page brief filed with the Senate on Monday.

"The Senate is being asked to do something patently ridiculous: Try a private citizen in a process that is designed to remove him from an office that he no longer holds," the lawyers wrote.  

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Constitutional scholars are divided over whether the framers intended to allow the Senate to hold an impeachment trial for a former president, though it's far easier to find experts who consider it proper – and not just on the left. Top conservative attorney Chuck Cooper threw a wrench into the GOP argument over the weekend with a Wall Street Journal op-ed that defended the constitutionality of the trial.

Nearly 150 constitutional experts from both ends of the political spectrum signed an open letter last month arguing that the trial is on solid legal ground.  

The Senate will begin hearing the case Tuesday, nearly three weeks after Trump left office and President Joe Biden moved into the White House. A Senate conviction would require a two-thirds majority – meaning 17 Republican votes if all 50 Democrats support it – an outcome that most observers and even some Democrats acknowledge is highly unlikely. 

The Democratic-controlled House impeached Trump Jan. 13.  

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The Constitution makes clear that a president "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." It gives the Senate the "sole Power" to conduct impeachment trials and requires that the chief justice of the United States preside when the president is tried.

It also limits punishment to "removal from Office" and "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States."

But what about a former president, like Trump? Several scholars said the framers clearly intended an impeachment – which is more a political process than a legal one – to be used for past officials as well as current ones. And they note that the Senate has spun up such trials for former officials twice before.   

Tennessee Sen. William Blount, a signer of the Constitution, became the first federal official to face an impeachment trial after President John Adams brought to light a conspiracy involving efforts to help Great Britain. The trial began in 1798, though Blount had already been expelled from the Senate. His attorneys made the same argument about senators not having jurisdiction over a former official, according to the Senate Historical Office. 

Months later, Vice President Thomas Jefferson announced the dismissal of the case.  

The Senate also held an impeachment trial for former Secretary of War William Belknap in 1876. Minutes before his impeachment on corruption charges, Belknap raced to the White House to deliver his resignation to President Ulysses S. Grant. But the trial went ahead nonetheless and Belknap was acquitted. 

"It would not make sense for them to have allowed disqualification as a possible outcome if it would be so easy for officials to avoid by resigning," said Brian Kalt, a Michigan State University law professor.

"The framers clearly valued the impeachment process not just for removal but also for accountability and deterrence, and it would be weird if they didn’t care about deterring presidents or holding them accountable at the end of their terms," he added. 

The opposing argument, echoed by Trump's defense attorneys and Senate allies, is that the Constitution focuses its sparse impeachment language on the idea that it applies to a sitting president because it points to "removal" from office as a primary consequence. 

"The question is, who is being tried. Is he a president? Obviously not. Is he a civil officer? No, he is a private citizen," wrote Jonathan Turley, a George Washington University law professor. "A private citizen is being called to the Senate to be tried for removal from an office that he does not hold."

Frank Bowman, an impeachment expert who teaches at the University of Missouri’s law school, disagreed. At issue, he said, is the provision of the Constitution that allows Trump to be barred from future office. And those two punishments – removal and prohibition from future office – are not mutually exclusive, he said.

If a criminal statute says a robber convicted of stealing shall return the loot and may also be sentenced to prison, Bowman said, he isn't free to avoid a trial if he spent all the money before he was arrested.  

"Perhaps the most important point is that the framers included the disqualification remedy precisely in order to deal with a person like Trump – a classic 'demagogue' who seeks to gain, and then perpetuate himself in, power by direct appeals to passions and prejudices of the masses," Bowman said.

"The danger of such a person is not extinguished once he is out of office."

Trump has flirted with running for president again in 2024.

An outcropping of the argument raised by Republicans is that Chief Justice John Roberts will not preside over the trial, as is required by the Constitution for a sitting president. Republicans signaled weeks ago that Roberts, who has been keen to steer the Supreme Court clear of recent partisan battles, wanted out.

Kalt said there is little significance to Roberts' absence, a notable departure from Trump's first trial last year in which the chief justice played a prominent role. The Constitution, Kalt said, can be read either as requiring Roberts to preside over a former president's Senate trial, or not. 

"It can go either way," he said. "Given how little it matters who presides, it doesn’t mean anything what they chose."