President Trump has only hours left in the White House — and the first few months of his time as a former president seem likely to be very different than any of his predecessors’. That’s not just because his popularity is plummeting and his party is splintering over whether to support or condemn him. He’s also leaving office with an impeachment trial and a host of other legal problems on the horizon — not exactly what you’d call a post-presidency glow.
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The impeachment trial, in particular, seems likely to ensure that Trump, and his role inciting the Jan. 6 attack on the Capitol, remain in the headlines even after he’s left the presidency. Trump won’t be the first president to leave the White House in a cloud of legal liability, of course. But he is likely to have the dubious honor of being the first former president to be tried by the Senate. And the newness of that situation means that there’s a lot of uncertainty about what the trial will look like — and what it will mean for Trump’s personal and political future.
House Speaker Nancy Pelosi is expected to send the article of impeachment to the Senate tomorrow or Friday, which would officially start the trial at 1 p.m. Eastern the following day and set the stage for opening arguments next week. The details of how the trial will proceed are still being worked out, and Republicans could try to contest its legitimacy because Trump will no longer be president when the trial begins. But even though removal from office will no longer be a viable threat, the result could still be very serious for him. If a two-thirds majority of senators votes to convict him, it would likely take just a simple majority to disqualify him from holding federal office again, dashing any hopes of a Trump comeback in 2024.
Disqualification, of course, hasn’t been used very often as a remedy in the history of impeachment — nor is it common for an impeachment trial to continue after the defendant is no longer in office. But there are historical precedents for both. Three people — all federal judges — have been disqualified from holding future federal office after being impeached and convicted. And in several cases, including one in 1797, just ten years after the Constitution was written, the Senate conducted an impeachment trial after the defendant was no longer in office. In the late nineteenth century, while contemplating a Senate trial for William Belknap, a former Grant administration official mired in a corruption scandal, the Senate voted on whether they actually had jurisdiction to try a former federal officer — and a majority concluded that they did.
Of course, that doesn’t mean that an impeachment trial of a former president will be a simple thing. Trump could still try to challenge the constitutionality of the trial itself, or try to overturn its outcome if he’s ultimately convicted and disqualified. And some Democrats have expressed concern about the prospect of an impeachment trial that stretches into the early months of Biden’s presidency, potentially overshadowing his agenda and eating up time that the Senate could be using to confirm Biden’s Cabinet appointees or to pass legislation like the massive coronavirus stimulus bill that is likely to be one of Biden’s first priorities as president. At one point in the past month, high-ranking House Democrat Jim Clyburn even suggested that the trial be delayed until after Biden’s first 100 days in office.
Biden, though, seems open to the idea of an impeachment trial that unfolds as he’s taking the reins. He said last week that he has spoken to Republican Senate Majority Leader Mitch McConnell about a possible “bifurcation” process where the Senate would spend half the day on Trump’s impeachment trial and the other half working on a COVID-19 relief bill and confirming Biden’s Cabinet nominees. It’s unclear whether the Senate will adopt this structure, but at the very least it signals that Biden realizes he will likely have to juggle Trump’s impeachment trial among his many priorities.
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The trial could be prolonged, though, if Trump decides to fight back. Frank Bowman, a law professor at the University of Missouri and the author of a book on the history of impeachment, said that he could imagine Trump suing to stop the trial from happening, or suing to overturn a conviction, perhaps on the grounds that the Senate doesn’t have power over him once he has left the presidency, since impeachment doesn’t apply to private citizens. The problem, Bowman said, is that the timing of the House vote to impeach Trump — which did happen while Trump was still president — significantly weakens any argument Trump could make about the constitutionality of a trial or conviction happening after he leaves office.
“If you’ve already asserted jurisdiction over him while he’s president, it becomes really hard to say, well now that he’s out of office we can’t try him or render a judgment,” Bowman said. If that were the case, anyone who’s impeached in the future could simply resign to avoid a trial, Bowman pointed out — or wait to commit impeachable offenses until the end of his term is in sight. It’s possible, too, that Trump could argue that disqualification doesn’t apply to elected officials, if the Senate gets to that point.
It’s not clear, though, just how much of a problem the trial will actually be for Trump. Even if the trial is deemed to be constitutional, a two-thirds majority vote to convict him — which would require the support of 17 Republican senators — is far from assured. And without a conviction, it’s unlikely Trump will be disqualified from holding federal office again. According to Brian Kalt, a law professor at Michigan State University, the vote to convict Trump must precede the vote to disqualify him from holding federal office again in the future. (Because it’s never happened before, it’s possible that the Senate could try to hold a disqualification vote without first convicting Trump, but Kalt and other experts said the Constitution is pretty clear that conviction has to happen first.)
But even without an impeachment conviction, Trump might still face other kinds of legal trouble. While he was in the White House, he was protected from criminal liability by the U.S. Department of Justice’s decades-old policy that presidents can’t be indicted while they’re serving as chief executive. But that protection will evaporate as soon as Biden takes the oath of office. Trump could theoretically face charges from federal or state prosecutors for inciting the Jan. 6 riot or for his call to Georgia Secretary of State Brad Raffensperger, in which he pressured Raffensperger to “find” the votes to reverse his defeat in the state.
Things could get complicated here, as there’s no reason why a criminal prosecution couldn’t proceed alongside an impeachment trial, according to Kalt. The Senate and the courts might be leery of the two processes running in parallel, but as Kalt said, “If Trump is facing prison, you could imagine the senators saying, ‘Well let’s see how this plays out first,’ and then finish [the impeachment trial] very quickly if he’s criminally convicted.” That, of course, would further delay the impeachment process, since criminal prosecutions typically take months or even years to play out. Some senators, nevertheless, have said that they see criminal liability as a possibility for Trump. Moderate Democratic Sen. Joe Manchin even suggested that a criminal process might be preferable to a lengthy impeachment trial.
It’s not clear, though, whether there are sufficient grounds for Trump to be prosecuted for his role in the assault on the Capitol or his call to Raffensperger, and it’s also very possible that Biden — even if he’s resigned to an impeachment trial — wouldn’t want one of his administration’s first actions to be prosecuting his predecessor.
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Of course, there is still one potential escape hatch for Trump — for the next few hours, at least. While he’s still president, he could issue a pardon for himself that would cover all kinds of legal liability. Reporting suggests that he won’t take this path, though, and it’s not hard to see why. For one thing, it could lead to another impeachment charge, or end up galvanizing more Republicans to vote for his conviction. It also wouldn’t save him from state prosecutors, since presidential pardons only apply to federal crimes, and it might even spur states to go after him more aggressively. And the pardon itself might not hold up in court, if the Biden administration challenges it, since there’s genuine uncertainty about whether a presidential self-pardon is even constitutional.
Trump is leaving the White House with plenty of potential legal liability, thanks to his actions over just the past few weeks, but it’s not clear what legal consequences he’ll face — if any — for his role in the Capitol riot.