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Constitutional Questions On Trump's Senate Impeachment Trial Answered


The first president to have been impeached twice by the House of Representatives is about to become the first president tried twice in the Senate. House Speaker Nancy Pelosi confirmed today that the article of impeachment against Donald Trump will be delivered to the Senate on Monday, where Majority Leader Chuck Schumer will take it up.


CHUCK SCHUMER: Make no mistake. A trial will be held in the United States Senate, and there will be a vote on whether to convict the president.

SHAPIRO: Trump will also be the first president tried after leaving office, and that opens up a lot of political and constitutional questions. We've got Michael Kang, a professor of law at Northwestern University, to talk through them with us.


MICHAEL KANG: Thanks for having me.

SHAPIRO: So Schumer says articles will be delivered on Monday. In practical terms, what does that mean about when a trial will start?

KANG: Well, I think in the usual case, when the articles are delivered, the impeachment trial starts basically immediately. I think, though, in practice, they'll have some flexibility if they want to build that in given the circumstances here, where the Biden administration wants to get to work and has other business that it wants the Senate to focus on.

SHAPIRO: Does the Constitution say anything specifically about convicting a president in the Senate after that person has left office and is no longer the sitting president?

KANG: It doesn't say anything specifically. It does say that impeachment is for the president, which some people have taken to mean not an ex-president. So it has to be someone that's a sitting president. But at the same time, I think that it's pretty clear precedent that we treat removal from office and disqualification from holding office in the future as separate questions. And obviously, the latter is still a live question. There's - I think there are many in Congress who intend impeachment to disqualify Donald Trump from holding office in the future.

SHAPIRO: If the Trump legal team wants to argue that it is not the proper place of the Senate to hold an impeachment trial after somebody has left office, where would they even make that argument? I mean, would they take it to the Supreme Court?

KANG: Well, it's possible. So I think as an initial matter, they may make it now, in the impeachment trial itself, to say that this...

SHAPIRO: You mean before the Senate, saying, do not vote to convict because this impeachment trial should not be happening right now.

KANG: Exactly. They'll make the argument as part of their legal arguments against conviction that this is inappropriate. And, in fact, in other impeachment proceedings, in other impeachment trials, exactly those kinds of arguments have been made, and the Senate has taken that into account. Assuming that Donald Trump is disqualified from holding office in the future based on the Senate vote, it may very well come up in court later on that Donald Trump may challenge the disqualification as illegitimate given that he wasn't holding office at the time.

SHAPIRO: What would it take to disqualify the former president from holding office in the future? Would a conviction automatically do that?

KANG: Conviction wouldn't automatically do that. There's pretty clear precedent that there are two separate questions. That is conviction and removal for office and then subsequently a disqualification vote. The standard for a conviction is a two-thirds majority. That's specified by the Constitution. The practice has been to treat the disqualification vote as a majority vote, but those are two different decisions that have to be made by the Senate.

SHAPIRO: Do you think the plan that top Democrats have suggested where they might, you know, split the day between an impeachment trial and confirming Biden nominees and advancing the legislative agenda is realistic? I mean, Trump's first impeachment trial took the full attention of the Senate with all 100 senators sitting in attendance all day for a couple of weeks.

KANG: Right. It's hard to imagine the Senate holding an impeachment trial of the style that we've seen before. At the same time, it's conducting its regular business, especially at the beginning of an administration when it's a fairly hectic schedule in terms of getting nominees confirmed and all of that during a time of pandemic and a lot of business to conduct. So it strikes me as a little bit unrealistic. However, these are extreme times, and I think there's a lot of incentive, certainly on the Democratic side, to get all of this done at once. And so I think they'll make every effort that they can. The Constitution doesn't speak specifically to this, obviously. So it's a matter of whether they can juggle that and negotiate the right set of rules with the Republicans to make it all work.

SHAPIRO: You know, setting aside a - I don't know - desired political outcome whether Trump should hold office again or not, just as a scholar of the Constitution, does this application of the impeachment power seem like a stretch to you? Does it seem well within the confines of the Constitution, obvious or less so? I mean, what do you make of it?

KANG: Right. I agree that this is a tough question. It's not - it's one that doesn't have obvious - an obvious answer. I think it's certainly true that impeachment is primarily a tool to remove federal officers from office. However, I think there's no doubt that disqualification is specified by the Constitution - disqualification from holding office in the future. And it's a separate question that's still a live one.

And I think there needs to be some accountability for a president who really does abuse his office and incites violence against the federal government. So I think on the side of those that want to proceed with the impeachment and convict Donald Trump, they're arguing that there needs to be some accountability here and that Trump shouldn't be exempt from punishment just because the timing of his actions happened to be that he left office, you know, about two weeks after he acted so egregiously.

SHAPIRO: That is Northwestern law professor Michael Kang.

Thank you very much.

KANG: Thank you. Transcript provided by NPR, Copyright NPR.