After Impeachment, What Next?

Scholars debate whether a trial of a former president is constitutional. And if it is, what would it do to the new Biden administration or Trump if he’s acquitted?

In one of the most stunning moments in American history, Donald J. Trump was impeached on Wednesday for an unprecedented second time as all House Democrats, and 10 Republicans voted to oust the 74-year-old over his “incitement of insurrection” at the U.S. Capitol and his months-long attempt to overturn the November election.

Senate Leader Mitch McConnell of Kentucky said that the chamber would not conduct a trial of the president before its members return to Washington on January 19, the day before Joe Biden will be sworn in as the 46th president at the heavily fortified Capitol that was attacked by Trump supporters, killing five, injuring dozens, ransacking the historic building, and leaving a nation shaken. Senator Charles Schumer of New York, the Democratic Leader, will become the majority leader when Georgia’s two newly elected Senators, Jon Ossoff and Raphael Warnock, are sworn in perhaps as soon as next week when their elections are certified.

The outcome of the impeachment vote, 232 to 197, was no surprise as Democrats took to the chamber all day to denounce the president in a truncated session that lacked any committee hearing or even extensive debate. Speaker Nancy Pelosi of California spoke for her party when she said: “The president must be impeached and I believe the president must be convicted by the Senate, a constitutional remedy that will ensure that the republic will be safe from this man who is so resolutely determined to tear down the things that we hold dear and that hold us together. It gives me no pleasure to say this. It breaks my heart.”

Even though Liz Cheney, the Wyoming Congresswoman, daughter of the former Vice President and chair of the House Republican Caucus, joined Democrats to oust the president, the overwhelming majority of Republicans argued either that Trump had not incited the deadly insurrection or that impeachment would be divisive and unnecessary because the president is down to his last eight days in office. The nine other Republicans who crossed party lines included Representative Peter Meijer of Michigan who said that Mr. Trump had “betrayed his oath of office by seeking to undermine our constitutional process, and he bears responsibility for inciting the insurrection we suffered last week.” Four House Republicans refrained from voting.

It’s not entirely clear what happens next. The Senate could take up President Trump’s trial as soon as it returns, assuming the House promptly sends its vote over to the other chamber before the 19th. Or Speaker Pelosi could hold on to the articles, delaying a Senate trial until a Biden administration finds its sea legs with confirmed cabinet secretaries and a budget proposal. Some legal scholars have argued impeachment doesn’t apply to a former president, which is what Trump will be on the 20th.

While the House debated impeachment, the president issued a statement condemning the violence. “In light of reports of more demonstrations, I urge that there must be NO violence, NO lawbreaking, and NO vandalism of any kind,” Trump said. “That is not what I stand for, and it is not what America stands for.” He later issued a video statement making the same points.

The question of whether the Senate can continue with impeachment after Trump leaves office could go to the Supreme Court. While the Senate has, in the past, conducted impeachment trials for officials after they’ve left office, it’s been rare and it’s never held a trial for a former president. In The Washington Post, J. Michael Luttig, a conservative former federal appeals court judge, has argued that impeachment shouldn’t apply to a former president and predicted that the high court would balk.

“In the end, though, only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him. It is highly unlikely the Supreme Court would yield to Congress’s view that it has the power to impeach a president who is no longer in office when the Constitution itself is so clear that it does not.”

In 2019, in the run-up to Trump’s first impeachment, the Washington Post asked six scholars if the former president could be impeached. Opinions ran the gamut. 

The political fallout of a trial of former President Trump is unpredictable. While the president’s popularity has plunged, there’s no telling if the public will support a trial of him as a former president. Could Trump actually lose the trial, something that no president who has been impeached has had to endure? That Leader McConnell is open to voting guilty shows how weak Trump’s support is. And if the Senate clears him, could his popularity somehow rise again? That seems unlikely given the president’s widespread ostracism and the collapse of his support among business leaders but Trump’s rise in 2016 also seemed unlikely.

Could Biden pay the price for Trump’s legal woes? A Senate clogged up with an impeachment trial is one that isn’t free to pass Biden’s ambitious agenda or confirming hundreds of political appointees and judicial nominations.

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Matthew Cooper

Matthew Cooper is Executive Editor Digital at the Washington Monthly. He is also contributing editor of the magazine and a veteran reporter having covered politics and the White House for Time, The New Republic, Washingtonian, National Journal and many other publications.