Legal Analyst: Constitutional Basis for Impeaching Ex-President Comes from Criminal Law

Legal Analyst: Constitutional Basis for Impeaching Ex-President Comes from Criminal Law


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Janet Ybarra
Former Washington Journalist
Contributor on The Bipartisan Press

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Despite the protestations of many Senate Republicans, the ongoing effort to try Donald Trump after he’s left office is not only constitutional — it’s grounded in solid law, according to an author and CNN legal analyst.

Led by Sen Rand Paul of Kentucky, a number of Senate Republicans attempted to have Trump’s impeachment trial — which began this week — declared as unconstitutional. They lost that vote, with all Democrats voting with five Republicans, on a 55-45 vote.

The fact that Trump left office on January 20 should not make a difference in trying him on an article of impeachment that he incited sedition and insurrection related to the attack on the US Capitol January 6, which left several dead — including a Capitol Police officer, according to author and legal analyst Laura Coates.

“Well, the idea of saying, you know what, if only — if I’m a senator — if only he was still the president that I would actually still vote to convict is a bit disingenuous. This is a procedural sort of exit ramp that they’re hoping to have here to say, ‘Look, it’s a former president. The clock has run out. All is well that apparently ends well.’ Well, in an analogy in the criminal justice system, we don’t allow the clock to simply run out and that if a person were to move away from a jurisdiction where they committed a crime, that would not be sufficient,” said Coates, author of You Have The Right: A Constitutional Guide To Policing The Police. “They could use that analogy to say, ‘Look, there’s precedential value to say, and precedent here that suggests that even after somebody has left office, there is still some way to actually complete the impeachment process. Remember, the impeachment took place while he was still the president of the United States. Not a lot of merit of not being able to actually try him after that because you got a two-prong hook after impeachment. It’s conviction and/or acquittal or conviction plus disqualification, which would obviously lead to after someone is in office at some point in time.

“Now the other aspect of it is whether they’re going to be able to call witnesses and who they’re going to build up for this case, John, and who they’re going to be able to prove all these instances,” Coates added. “But let’s not be fooled that there is some key procedural issue that really is the reason people don’t want to vote in favor of conviction.”

If all Democrats vote to convict Trump, 17 Republicans would be required to vote in order for Trump to be convicted.

After that, senators could proceed to a follow-on vote in which a bare majority could then bar Trump from holding public office ever again.

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