A former federal judge said that it is unconstitutional for the Democrats to push through an impeachment trial after President-elect Joe Biden was sworn into office.
A former judge of the U.S. Court of Appeals for the 4th Circuit, Michael Luttig, wrote an article on Tuesday in the opinions and editorials page of The Washington Post, arguing that conducting Trump’s impeachment trial after the President is already out of office is unconstitutional.
"[T]he Senate trial on that impeachment will not begin until after Trump has left office and President-Elect Biden has become president on Jan. 20. That Senate trial would be unconstitutional." Judge J. Michael Luttig: https://t.co/D7IfzzEEzm
— Hugh Hewitt (@hughhewitt) January 13, 2021
The House is set to move an article of impeachment against President Trump and then send it to the Senate for Trial. However, the Senate is not scheduled to be back in until January 19, which is a day before President-elect Joe Biden is sworn into office. This leaves the Senate insufficient time to hold a trial on the articles of impeachment and voting on removing President Trump from office before his term ends.
The former Judge writes, “It appears that even if the House of Representatives impeaches President Trump this week, the Senate trial on that impeachment will not begin until after Trump has left office and President-Elect Biden has become president on Jan. 20.” Judge Luttig continued and said, “that Senate trial would be unconstitutional.”
It was last Sunday when House Majority Whip James Clyburn (D-SC) gave the idea of waiting until President-elect Joe Biden is sworn in before holding a vote in the House to impeach Trump. He stated that this would give Biden a chance to work on his agenda first before the Senate tackles the impeachment trial.
Rep. James Clyburn says while he expects the House will take action on the article of impeachment against Pres. Trump this week, House Democrats might wait until after President-elect Biden's first 100 days in office to send the article to the Senate. #CNNSOTU pic.twitter.com/aLjjNWAxG9
— State of the Union (@CNNSotu) January 10, 2021
Clyburn said in an interview on CNN, “We’ll take the vote that we should take in the House, and [House Speaker Nancy Pelosi] will make the determination as to when is the best time to get that vote and get the managers appointed and move that legislation over to the Senate.”
He added, “It just so happens that if it didn’t go over there for 100 days, it could – let’s give President-elect Biden the 100 days he needs to get his agenda off and running, and maybe we’ll send the articles sometime after that.”
However, according to Judge Luttig, these suggestions of Clyburn could NEVER take place under the Constitution. The former federal judge said that once the term of President Trump ends on January 20, Congress will lose its constitutional authority to continue with the impeachment trial against him, even if the House already approved the articles of impeachment.
A president cannot be impeached after he leaves office. Therefore, were the House of Representatives to impeach the President before he leaves office, the Senate of the United States could not thereafter convict the former President and disqualify him from future public office.
— @judgeluttig (@judgeluttig) January 11, 2021
The former judge further wrote, “therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.”
Luttig said that the reason for this is found in the U.S. Constitution itself as President Trump would no longer be sitting in the Office of the President at the time of the Senate proceeding. Thus, under the Constitution’s Impeachment Clauses, he could no longer be subject to “impeachment conviction” by the Senate.
The former federal judge also stated, “the Senate’s only power under the Constitution is to convict — or not — an incumbent president.” And Trump will not be the incumbent president by then.