BANGOR – The House was expected to send its impeachment article against former President Donald Trump to the Senate Monday evening.
But what does the Constitution say about impeaching someone who’s no longer in office?
“This is really, a historic moment,” said Dmitry Bam, a professor of law and vice dean of the University of Maine School of Law in Portland.
Donald Trump is the only president to have been impeached twice while in office, the second coming in connection with the violent insurrection at the Capitol on January 6.
“The primary purpose of an impeachment trial and a conviction is removing someone from office so they can’t cause any more harm or continue their illegal conduct,” Bam explained.
Now that Trump is no longer in office, the question becomes: can you conduct an impeachment trial against a former president?
According to legal and political science professors, it’s not an easy question to answer.
“The Constitution itself doesn’t explicitly say that that’s allowed or that it’s prohibited,” said Mark Brewer, a political science professor at the University of Maine in Orono.
Brewer says it’s important to look at prior impeachment trials against elected officials after they left their positions, like former Secretary of War William Belknap in 1876, as well as trials against federal judges.
“Past precedent tells me that it’s been done. It’s never been done against a president, for sure, but there’s nothing in the Constitution that distinguishes impeachment of a president from impeachment of any other federal official,” Brewer said.
“My judgment is that impeaching, removing and potentially barring a former official from future office is allowed under the Constitution,” said Brewer, though he added that it’s not a “done deal.”
“I believe pretty strongly that the arguments are better on the side that a former president can be tried,” Bam said.
Bam points to removal from office and disqualification from future office as punishments listed in the Constitution if someone is convicted in an impeachment trial.
“The argument on the other side, of course, is that there was no conviction in those cases,” Bam said, referring to past impeachment trials conducted after the official had left office. “So, we should take that precedential value and discount it a little bit, because maybe some senators voted not to convict, because they were concerned about the same timing issue.”
Brewer noted the severity of the insurrection that led to the introduction of the impeachment article.
“The question is: ‘Do you think that Pres. Trump is among those who are responsible, and therefore need to be held accountable?’ I think if you answer yes to that question, then I think you need to support proceeding here. If you answer no to that question, then I think it seems that proceeding would be a problem if he’s not responsible for it,” said Brewer.
Brewer said while he believes the Constitution says it can be done, another question is if it should be done.
“You could make the case either way on this one,” Brewer said. “Removing from office, even though he’s already removed from office, and barring from future office puts an end to it. On the other hand, you could make a case that proceeding here just adds further fuel to the fire, prevents us from moving on, and really is mean spirited and the wrong thing to do.”
Both agree that the trial will set its own precedent moving forward.
“One of the values of holding this trial, regardless of the result, is to say this does cross the line and set the precedent for future presidents that certain conduct will lead to an impeachment while they’re in office or once they’re out of office,” Bam said.