McConnell circulates procedures for second Senate impeachment trial of Trump
Quote:
Outgoing Senate Majority Leader Mitch McConnell (R-Ky.) on Friday circulated to colleagues a memo outlining the procedure for holding another trial for President Trump if the House impeaches him for a second time in just over a year.
The document, which was first reported by The Washington Post, lays out how the Senate would proceed if the House approves articles of impeachment and transmits them to the upper chamber before or by Jan. 19, when senators are scheduled to resume regular business after the January recess.
McConnell says the most likely scenario if the House impeaches Trump in his final 12 days in office is for the Senate to receive a message from the lower chamber notifying it of the action on Jan. 19. That would then give the Senate the option of ordering the House managers to present those articles on the same day.
Senate Impeachment Rules require that at 1 p.m. on the day after the managers exhibit the articles, the Senate “must proceed to their consideration,” the memo states.
As a result, the Senate trial would not begin until one hour after President-elect Joe Biden takes the oath of office.
“The Senate trial would therefore begin after President Trump’s term has expired – either one hour after its expiration on Jan. 20, or twenty-five hours after its expiration on Jan. 21,” the memo states.
The Senate impeachment rules state that unless the Senate orders otherwise, once the trial has commenced, the Senate “shall continue in session from day to day (Sundays excepted) … until final judgment shall be rendered,” according to McConnell’s memo.
A Senate impeachment trial after Trump leaves office? Some experts say yesQuote:
No president has ever been removed from office by the impeachment process, and no president has been impeached by the House more than once.
Legal experts are divided into three camps of opinion, however, on what happens if the president leaves office.
One group says a president can be impeached only while in office. "I tend to believe it is only for current office holders," said Harvard law professor Cass Sunstein, author of "Impeachment: A Citizen's Guide."
According to a second group of scholars, if the House votes to impeach while the president is in office, the Senate can proceed to a trial even after the president has left office.
"Once an impeachment begins in the House, it may continue to a Senate trial. I don't see any constitutional problem with the Senate acting fast or slowly," said Michael Gerhardt, a law professor at the University North Carolina at Chapel Hill.
And a third view is that the entire process can begin even after the president is out of office.
"The constitutional case for late impeachment has more strengths and fewer flaws than the case against it," wrote Brian Kalt, a professor at the Michigan State University College of Law in a widely cited law review article on the subject.
No president has ever been impeached after leaving office, but there is one legal precedent that may be important.
In 1876, Secretary of War William Belknap was investigated by the House for corruption. Just minutes before the House was set to vote on his impeachment, he raced to the White House and handed his resignation to President Ulysses Grant.
The House went ahead and impeached him anyway, and the Senate proceeded to have a trial. A majority voted to convict, but not the two-thirds required, so he was acquitted. The scholars in the second camp point to this example to bolster their argument that even after leaving office, a president could be convicted and barred from holding future federal office.
Could Trump sue to stop a Senate trial? He could try, but it would be a tough case to win, because the Constitution says the Senate shall have "the sole power to try all impeachments."
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