House Speaker Nancy Pelosi (D-CA) pushed the vote on the second impeachment of Donald Trump through with lightning speed last week, but immediately hit the brakes on pursuing it further — and now legal scholars say it could be too late.
Constitutional law scholar Alan Dershowitz indicated that the impeachment should be dismissed by the Senate during a recent episode of his radio show because after President-elect Joe Biden’s inauguration, “the Senate simply has no authority to try him because you can’t remove him,” adding that “you can’t remove somebody who is no longer president.”
Senate Majority Leader Mitch McConnell (R-KY) announced last week that the Senate would not be able to take on the article of impeachment before President-elect Joe Biden’s inauguration, but Pelosi showed no signs of attempting to send the article to the upper chamber prior to the inauguration anyway.
Perhaps the Speaker learned a thing or two from the first impeachment, that is: Democrats can claim Trump was impeached because of the House vote, but dealing with the hassle of actually convicting the President in the Senate isn’t worth the bad PR.
Dershowitz also addressed claims that impeachment must be pursued to prevent Trump from holding office again in the future:
The idea of now going to a Senate trial in order to disqualify him — a trial that’s probably unconstitutional, a trial that’s probably illegal and a trial that may well be struck down by the courts — is a foolish waste of American taxpayers’ money, of priorities, and I think, is not good for the Biden administration.
Legal scholar Jonathan Turley agrees with Dershowitz that impeachment should not proceed to the Senate. Turley wrote in USA today of the prospect:
This impeachment should end with the Trump administration. I do not fault those who view the president’s conduct as impeachable. The speech was reckless and wrong. My primary objection was to the use of a snap impeachment and the language of the article of impeachment. That is now part of Trump’s presidential legacy. The question is now what will be the troubling constitutional legacy left by the Senate in the trial of an ex-president.
Turley warned that the frivolous application of impeachment as a way of achieving political retribution would “fundamentally alter” the role that impeachment powers play in the American form of governance.
“A retroactive removal vote would combine with the use of a snap impeachment to fundamentally [alter] the role of impeachment in the United States,” Turley explained. “It would take a rush to judgment and turn it into a parade of constitutional horribles. Any party could retroactively impeach or remove a former president for the purpose of disqualifying him from office. Thus, if a party feared a one-term president’s possible run, they could hold use impeachment to eliminate the political threat.”
Of course, legal scholars are not in complete agreement over the matter. Longtime Harvard Law School professor Laurence Tribe is in favor of pushing impeachment all the way through the Senate, arguing that Trump’s departure from office does not disqualify him from conviction:
To be sure, a former officer may no longer be ‘removed’ even upon conviction by a two-thirds vote. But that has no bearing on whether such an ex-officer may be barred permanently from office upon being convicted. That separate judgment would require no more than a simple majority vote.