House Democrats are voting today to impeach President Donald Trump on a charge of “incitement of insurrection” for last Wednesday’s storming of the U.S. Capitol by a pro-Trump mob. If the vote succeeds, Trump will be the only U.S. president in history to be impeached twice. But a constitutional scholar says impeachment isn’t the only way Trump could be punished by Congress.
VPR's Mitch Wertlieb spoke with Tom Sullivan, a constitutional law professor and former president of the University of Vermont who also teaches a course on impeachment. Their conversation below has been condensed and edited for clarity.
Mitch Wertlieb: It seems just about impossible that there would be time for a full Senate trial to take place before President-elect Biden takes office, if this impeachment vote goes through. Could an impeachment trial happen after Trump leaves office?
Prof. Tom Sullivan: The Constitution is not explicit about that question. However, we do have constitutional history with lower federal court officials being impeached after they leave office. So I think there is precedent.
As I understand the process that will unfold today, the article of impeachment will be introduced in the House of Representatives. It may, in fact, be voted on today or shortly thereafter and then transmitted to the United States Senate, where the Senate sits as a jury to try the article of impeachment.
That process and timeline in the Senate will be governed by Senate rules and, of course, the [Senate] leadership. And as we know, that's become complicated, because the leadership in the Senate is changing literally as we speak.
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But of course, some people may be wondering what is the point of having the trial at all if Trump is already out of office?
I think there are a couple of constitutional principles that will be asserted by the managers in the House, and perhaps articulated again in the Senate. And they are: accountability for crimes and misconduct as alleged. So that was a very important fundamental policy by the founders of the Constitution, that if we're going to give the president strong powers under Article 2, then we need to have a check and balance, which is the impeachment clause. And that accountability principle was very strong with all of the founders, without dissent.
Second is the principle of deterrence. If the president is not held accountable, the argument goes, then other presidents, his successors, may think that they can do or condone the same kind of misdeeds, abuse or crimes.
And third, the founders were very concerned about the president being the chief law enforcement officer, the one who faithfully executes the laws of the United States. It's in the Constitution, that that's his principal responsibility. And indeed, the president takes the oath of office to do that.
So those are three overriding, I think, constitutional principles: accountability, deterrence and a responsibility to faithfully execute the laws.
Given everything that's happened, one of the things that's being talked about is a vote on preventing Trump from holding office in the future. I'm wondering if the Senate could take that vote without a conviction, or is it tied to conviction on the impeachment charges related to Trump's role in the insurrection?
The impeachment clause in the Constitution, and there are several provisions here, specifically state that the Senate has discretion, after a conviction, to bar the president from future public office. So the precondition under the impeachment clause is that he be convicted first.
However, just being discussed recently is Section 3 of the 14th Amendment. The 14th Amendment was enacted in 1868. And it says that if a public official, including the president, if they engage in violating of civil rights and citizenship, et cetera, of an individual, they may be removed from office. They shall not hold office in the future.
So there is a second opportunity, outside of the impeachment clause. And if there is no conviction in the Senate, for the House and the Senate under the 14th Amendment, Section 3, to bar the president from sitting again for public office, that I believe only takes a majority vote of both chambers, the House and the Senate.
So what we might see today, quite frankly, is if the House were to impeach, which is a charge and an allegation that goes over to the Senate for trial, the House could today, or soon thereafter, also vote by a majority vote to bar him from public office in the future.
And again, that would take only a majority vote of both houses?
The Constitution is silent on that, but constitutional history seems to suggest that a majority vote would be enough. So then it could go over to the Senate. And the Senate, in a compromise process, may decide [they're] not going to convict, but [they're] going to, in a majority vote, to bar him from public office. Or they may go the full distance and convict, and then decide to bar.
So there are two opportunities here under the impeachment clause, and under the 14th Amendment, to bar him from public office in the future.
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I do have a political, and a kind of a prediction question, here for you, Prof. Sullivan. As we've been talking about, conviction in the Senate on the impeachment resolution would require a two-thirds majority, assuming that all Democrats vote to convict. That would mean at least 17 Republicans would need to join them. Do you see that as even a remote possibility?
At this time, it seems like a significant challenge to get a conviction in the Senate. However, the news in the 24-hour news cycle is moving so fast, with new developments, and new video of the rioting in [the Capitol] last week. Votes may be changed on a daily or hourly basis, depending upon the news and the news cycle.
So while today it looks like it might be unlikely to get two-thirds, those 17 senators, in a week, or two weeks, or whatever the time that the trial takes place in the Senate, there may be enough new evidence that it could carry the day for a conviction.
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