As the U.S. House moves toward drafting articles of impeachment against Donald Trump for his egregious misconduct in inciting a mob to attack the Capitol to prevent the lawful recognition of Joe Biden’s election victory, the obvious objection will be that there’s simply not enough time to remove him from office. Trump’s term ends in just 12 days, which doesn’t leave much time for impeachment and a Senate trial — especially because there’s enough Republican resistance in the Senate to slow down the process or stop it entirely. But there is a case increasingly being made for proceeding with impeachment and forcing a Senate trial of Trump that would conclude after January 20 in order to ban him from holding office in the future.
There is no question that the Constitution authorizes a ban on future officeholding as an option for the Senate as a “sentence” after an impeachment trial. Sometimes it is imposed after elected officials have been convicted of impeachable offenses, and sometimes it isn’t. Indeed, Senate rules provide that such a ban may be enacted by a simple majority vote after two-thirds of the Senate has voted for conviction in an impeachment trial. It has never happened to a president before because none has been convicted. But is is clearly a penalty severable from the primary sanction of removal from office.
The real question is whether it would be possible to hold and complete an impeachment trial after its target has already left office. No court has ever ruled on this matter, but a lively debate in scholarly circles has emerged twice in recent years: in 2001 when Senator Arlen Specter proposed impeaching Bill Clinton after he left office for his last-minute pardon of fugitive financier Marc Rich, and in late 2019 when Congressman Matt Gaetz semi-seriously suggested impeaching Barack Obama in response to Trump’s impeachment that year. It’s probably accurate to say the weight of expert opinion is that it’s entirely possible to impeach and convict a former president (or other former federal executive or judicial officer), because otherwise it would be easy for scofflaws to evade sanction simply by resigning.
The advantage to this approach, of course, is that it takes the pressure off Congress to act instantly, while maintaining deterrence against any wild Trump misconduct until he is safely out of office. And it’s even possible some Republicans who would otherwise fight impeachment and conviction might go along with it in order to save their party from the agony of four more years of being harnessed to the 45th president’s narcissistic irresponsibility. Certainly such possible 2024 candidates as Ted Cruz, Josh Hawley, Tom Cotton, Marco Rubio, and Lindsey Graham would be crossing their fingers behind their backs if and when they defended Trump in a Senate trial.
Would a post-presidential impeachment or trial of Trump enrage the MAGA masses to a dangerous level? Possibly, though they have arguably already reached that level, and if denied their leader, would probably shift their dynastic allegiance to Don Jr. or Ivanka or Lara, none of whom are exactly presidential timber even according to the low standards set by the old man. The most important reason for persisting beyond January 20 with impeachment proceedings, however, is simple justice: Trump compounded his frequently criminal presidency with behavior the last two months that cries out for condemnation and punishment. A ban on a Trump presidential comeback is the only sanction left within Congress’s power. From a more practical point of view, it would be the political equivalent of the wooden stake thought necessary to ensure a vampire cannot rise from the grave.
