Can the Senate Try Private Citizen Trump after He Leaves Office?
by Alan M. Dershowitz • January 11, 2021 at 5:00 am
Some pundits and Senators have suggested that a former President can be impeached and tried as a private citizen. I don't know if they think this applies to all former presidents, including Clinton, Carter, Bush and Obama, or whether it is applicable only to a president, like Trump, who has just recently left office. But either way, they are simply wrong as a matter of the Constitutional text and meaning.
The relevant text of the Constitution reads as follows: "The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." (Article II, Section 4)
The Framers of the Constitution debated impeachment extensively. It is clear that they intended it to apply only to sitting presidents and other office holders and not to private citizens who previously held that office.
The Framers did, however, regard impeachment and trial as part of one single process, culminating in removal from office. And so, if removal from office is no longer a possibility, it would seem that Congress would have no jurisdiction to impeach.
What they want to do is to impeach President Trump without giving him an opportunity to defend himself at a Senate trial. This would be analogous to a prosecutor deciding to indict someone and then deny him a trial at which he could disprove his guilt or prove his innocence. That would be a core denial of due process, as would impeaching a president based on a majority of the House while denying him a trial in the Senate that requires a two-thirds super majority to remove.
Some pundits and Senators have suggested that a former President can be impeached and tried as a private citizen. I don't know if they think this applies to all former presidents, including Clinton, Carter, Bush and Obama, or whether it is applicable only to a president, like Trump, who has just recently left office. But either way, they are simply wrong as a matter of the Constitutional text and meaning. The relevant text of the Constitution reads as follows: "The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." (Article II, Section 4)
