“Our members, irrespective of what they might think about the merits, just believe that this is an exercise that really isn’t grounded constitutionally and, from a practical standpoint, just makes no sense,” Thune said.
But critics — including scholars from the conservative Federalist Society and other right-leaning organizations — maintain that the argument is on flimsy legal ground. Moreover, federal courts have consistently deferred to Congress’ “sole power” to set its own rules and procedures, including over impeachment proceedings.
Still, Republicans’ contention is shaping up to be a central theme of the ex-president’s defense strategy in the Senate’s upcoming trial, with several GOP senators publicly echoing it in recent days even as they signal increased hostility toward Trump over the attack on the Capitol.
“I think the key point is, is it constitutional to do this when somebody is out of office — and then, is it purely retribution when you try to push it forward,” Sen. Mike Braun (R-Ind.) said. “[That’s] not to dismiss any of the enormity of the day itself.”
“I think it is one of the most potent arguments [for Trump], absolutely,” added Sen. Lindsey Graham (R-S.C.), a top Trump ally who has been pushing for a vote on dismissing the trial at its outset.
Indeed, the Senate has never put a former president on trial on impeachment charges, though in 1876 the Senate tried former Secretary of War William Belknap after he had already resigned. Supporters of the Senate’s authority to try an ex-official have pointed to the Belknap trial to underscore that a president or any other person subject to impeachment could simply resign or otherwise leave office to evade punishment.
“If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote,” a bipartisan group of legal scholars, including prominent conservatives, wrote on Thursday.
Senate Majority Leader Chuck Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) still need to iron out a framework, which will outline the rules and procedures of the trial. McConnell on Thursday also proposed delaying the start of the trial by two weeks to allow Trump to prepare his defense strategy, though it’s unclear if Schumer will agree.
The framework will spell out whether to allow for a motion to dismiss the trial at its outset — a vote that could signal the likelihood of the Senate convicting Trump. Seventeen Republicans would need to join all Democrats for Trump to be convicted. Some senators said they are considering supporting such a motion, if one is offered, as a way of voicing their objections to putting a former president on trial.
“I don’t think, once a person has left office, that impeachment is available. I think it’s a moot issue at that point,” Sen. Mike Rounds (R-S.D.) said. “Constitutionally, it’s the wrong thing to do.”
In this case, as Republicans note, there is no office from which to remove Trump, though convicting him could lead to other punishments such as barring him from seeking federal office in the future.
“Let the voters decide whether they want President Trump to run again,” Sen. Ron Johnson (R-Wis.) said. “There’s nothing I see in the Constitution that allows you to impeach a president after he’s already left office.”
Johnson said he would “definitely” vote to dismiss the trial, adding that the House’s impeachment article “shouldn’t even be sent over here.” Transmitting the article from the House to the Senate triggers the beginning of the trial.
But Democrats, who now control the Senate, are intent on holding a trial, even as Speaker Nancy Pelosi has not yet formally transmitted the impeachment article to the other side of the Capitol. Schumer declared as much after the House impeached Trump last week, though Democrats have not yet decided how long the trial should last, which will be dictated by whether they decide to call witnesses as part of the proceedings.
Top lawmakers from both parties, though, are predicting a relatively short trial. Trump’s first impeachment trial lasted three weeks, but that was only after a weeks-long impeachment inquiry in the House that yielded hundreds of pages of evidence and legal arguments. Rep. Jamie Raskin (D-Md.), the House’s lead impeachment manager, said Thursday that the upcoming trial will not last as long as the previous one.
That’s in part because, this time, the House did not conduct a formal investigation, and several senators have said calling witnesses is not necessary because lawmakers were all witnesses to the siege on the Capitol and because Trump’s actions and statements were on full public display.
“It’s not like we need much information on the merits of the case,” Braun said. “We were here.”
“I guess the public record is your television screen,” Graham quipped. “I don’t see why this would take a long time.”
Apart from the constitutional arguments, Republicans are questioning why Democrats want to put Trump on trial while President Joe Biden is emphasizing unity and bipartisanship, noting that an impeachment trial is among the most divisive undertakings on Capitol Hill.
“I’m not sure why it helps the Dems either. I know there’s an awful lot of antipathy for the former president. But they’ve got a new lease on life,” Thune said. “They’ve got the White House, they’ve got the majority in the Senate. They’ve got a lot of stuff they want to do. They want to rehash the last four years, and it doesn’t seem like it makes a lot of sense.”
Republicans have been urging Biden to step in to halt or otherwise impede the Senate trial on the grounds that it will delay consideration of Biden’s Cabinet nominees as well as his legislative agenda, which includes another round of Covid-19 relief.
“It’ll be incredibly divisive for the country if we go through that,” Sen. Marco Rubio (R-Fla.) said. “We’re in the middle of this massive pandemic. We’ve got all these nominations that we need to do. We’ve got all these threats around the world that we’ve got to be focused on. There’s a lot to be done. The notion that we’re going to spend a week or two weeks on a trial on somebody who’s not even in office — it sounds to me like a waste of time.”
Pelosi pushed back against that contention earlier Thursday, saying bluntly: “The president of the United States committed an act of incitement of insurrection. I don’t think it’s very unifying to say, ‘Oh, let’s just forget it and move on.’ That’s not how you unify.”
Burgess Everett contributed to this report.