According to Politico, a bipartisan group of constitutional law scholars, including members of the conservative Federalist Society, wrote in a letter Thursday that former President Donald Trump can be convicted in an impeachment trial even though he has left office.
“We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation,” wrote the signatories, which include the co-founder and other members of the conservative Federalist Society legal group. “But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”
More than 150 legal scholars signed on to the letter, which was obtained by POLITICO. They include Steven Calabresi, the co-founder of the Federalist Society; Charles Fried, who served as solicitor general under Ronald Reagan and is now an adviser to the Harvard chapter of the Federalist Society; Ilya Somin, a law professor at George Mason University and adjunct scholar at the libertarian Cato Institute; and Brian Kalt, a law professor at Michigan State University and leading scholar on the specific question of whether former officials can be impeached.
Trump was impeached by the House last week for “incitement of insurrection” in a vote of 232-197, the news outlet noted. The move came after a mob of his supporters stormed the Capitol, leaving five people dead.
The letter counters an argument that appears to be picking up steam among some Republicans in the Senate “that it would be unconstitutional for the Senate to hold an impeachment trial for Trump now that he is a private citizen,” Politico reported.
The argument was laid out by conservative former federal appeals Judge J. Michael Luttig in The Washington Post earlier this month. He wrote that “once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.”
The constitutional scholars who signed on to the letter disagree with that assessment, arguing that because the Constitution’s impeachment power has two aspects — removal from office and disqualification from holding office again in the future — it must also be extended to former officials who could try to run for reelection.
“Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires,” they wrote. “But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction.”
Image credit: Official White House Photo by Tia Dufour / Public Domain