The Impeachment and Trial of a Former President

"For the second time in just over a year, the House of Representatives has voted to impeach President Donald J. Trump. The House previously voted to impeach President Trump on December 18, 2019, and the Senate voted to acquit the President on February 5, 2020. Because the timing of this second impeachment vote is so close to the end of the Trump Administration, it is possible that any resulting Senate trial may not occur until after President Trump leaves office on January 20, 2021. This possibility has prompted the question of whether the Senate can try a former President for conduct that occurred while he was in office.

The Constitution’s Impeachment Provisions

The Constitution grants Congress authority to impeach and remove the President, Vice President, and other federal “civil Officers” for treason, bribery, or “other high Crimes and Misdemeanors.” Impeachment is one of the various checks and balances created by the Constitution, and it serves as a powerful tool for holding government officers accountable.

The impeachment process entails two distinct proceedings carried out by the separate houses of Congress. First, a simple majority of the House impeaches—or formally approves allegations of wrongdoing amounting to an impeachable offense. The second proceeding is an impeachment trial in the Senate. If the Senate votes to convict with a two-thirds majority, the official is removed from office. The Senate also can disqualify an official upon conviction from holding a federal office in the future; according to Senatepractice, this vote follows the vote for conviction. The House has impeached twenty individuals: fifteen federal judges, one Senator, one Cabinet member, and three Presidents. Of these, eight individuals—all federal judges—were convicted by the Senate. President Trump is the first individual that the House has impeached twice. During the first impeachment process, the Senate voted to acquit him following a trial for charges of abuse of power and obstruction of Congress.

Impeachment of Officials After Leaving Office

The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have Congressional Research Service https://crsreports.congress.gov LSB10565 Congressional Research Service 2 closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office. It also accords with the British impeachment of Warren Hastings two years after his resignation as the governor general of Bengal. The impeachment occurred during the Convention debates and was noted expressly by the delegates without expressing disapproval of the timing. While the Framers were aware of the British and state practices of impeaching former officials, scholars have noted that they chose not to explicitly rule out impeachment after an official leaves office. But the Framers nonetheless made other highly specific decisions about the impeachment process that departed from the British practice, such as requiring a two-thirds majority in the Senate for a conviction when the British system allowed conviction on a majority vote..."
Former President impeachment