Republican Sen. Tom Cotton was rebuked by President Trump last week for opposing the effort of some of his colleagues to object to the certification of Electoral College votes, but the Arkansas lawmaker is declaring that an impeachment trial after Trump leaves office would be unconstitutional.
“The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens,” he said in a statement. “The Constitution presupposes an office from which an impeached officeholder can be removed.”
While the House has passed an article of impeachment against the president, the Senate “under its rules and precedents cannot start and conclude a fair trial before the president leaves office next week,” he said.
“Under these circumstances, the Senate lacks constitutional authority to conduct impeachment proceedings against a former president.”
Any trial would have to be held after the inauguration, because Senate Majority Leader Mitch McConnell has confirmed that the Senate will not reconvene until Jan. 19, one day before the inauguration. McConnell contends that a trial can commence only if there is unanimous consent, meaning all 100 senators must agree. Senate Minority Leader Chuck Schumer insists that an “emergency session” can be held if he and McConnell agree.
In a Washington Post column, former Fourth Circuit Judge Michael Luttig also contended a Senate trial would be unconstitutional.
“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,” Luttig wrote.
Harvard Law professor Cass Sunstein and Harvard professor emeritus Alan Dershowitz also believe a Senate trial after Trump leaves office would be unconstitutional.
However, Brian Kalt, a professor at the Michigan State University College of Law and Michael Gerhardt, a professor at the University of North Carolina School of Law, disagree.
Those who argue for a Senate trial point out the Constitution also states the penalty for impeachment can include “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”
House Speaker Nancy Pelosi made it clear in an interview with “60 Minutes” last Sunday that preventing Trump from running again in 2024 is one of her motivations for impeachment.