Some legal experts on the congressional power of impeachment believe President Donald Trump could be impeached and tried in the Senate even after he leaves office at noon on Jan. 20.
As House Democratic leaders consider a vote on articles of impeachment as early as the middle of next week, here’s a look at how the procedure would work.
The House can bring an impeachment resolution to the floor for an immediate vote, bypassing the process of committee hearings, which were held when Trump was impeached in 2019 and acquitted in the GOP-controlled Senate. In the normal course, skipping hearings would deprive impeachment proponents of the opportunity to build credibility and support by calling witnesses.
But in the current circumstances, supporters may consider that unnecessary.
It would take a simple majority vote for the House to impeach. Any articles of impeachment would then go to the Senate, where they could be referred to committee or be fast-tracked to the Senate floor.
In the Senate, a two-thirds vote is required to convict. Democrats, who will soon control the Senate, would need significant GOP support to convict.
If Trump were convicted, the Senate could then proceed to a vote on whether to bar him from holding future federal office. That would require a simple majority vote.
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.”