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Federalist Society co-founder says it IS constitutional to convict Trump after he leaves office

Co-founder of conservative legal group the Federalist Society says it IS constitutional to convict Donald Trump after he leaves office

  • More than 150 constitutional scholars wrote saying the trial is constitutional
  • Trump’s Senate trial could start within days
  • They cite Congress’ ‘sole power’ of impeachment
  • Constitution provides not just for removal but prohibiting holding future office 
  • Trump has not ruled out another run in 2024 
  • Framers feared ‘demagogue’ intent on ‘overthrowing republican government’

More than 150 legal and constitutional scholars – including a co-founder of the conservative Federalist Society – have joined in a letter arguing that President Donald Trump can be impeached despite being out of office.

The letter comes as Senate Minority Leader Mitch McConnell has spelled out his preferences on a Senate trial for former President Donald Trump, who was impeached in the House just days before the end of his term.

They point to the text of the Constitution, precedents, as well as the intentions of the Founders in providing a remedy to stop a ‘demagogue’ who might seek to overthrow the U.S. government. 

President Donald Trump waved to supporters as he arrived at Palm Beach International Airport in West Palm Beach, Florida, on January 20, the last day of his term. His Senate impeachment trial is set to begin within days despite Trump no longer being in office. 

Among the signers of the letter is Northwestern University Law Professor Steven Calabresi, a cofounder of the conservative Federalist Society, a group that generated lists of many of the conservative judicial nominees Trump installed in the courts.

‘More broadly, a singular concern of the Framers in devising our constitutional system was the danger of a power-seeking populist of the type they referred to as a “demagogue” rising to the highest office and overthrowing republican government,’ they write.

Steven Calabresi is a confounder of the conservative Federalist Society

Steven Calabresi is a confounder of the conservative Federalist Society

‘The Framers further understood that the source of such a person’s power does not expire if he or she is expelled from office; so long as such a person retains the loyalty of his or her supporters, he or she might return to power. The Framers devised the disqualification power to guard against that possibility, and would surely disagree that a person who sought to overthrow our democracy could not be disqualified from holding a future office of the United States because the plot reached its crescendo too close to the end of his or her term. 

Trump would be the first U.S. president impeached after leaving office, but not the first U.S. official.  

Another key part of the argument is that the Constitution provides not just for removal but for denying future office. It states that impeachment ‘shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.

Trump was acquitted of his first impeachment in February 2020

Trump was acquitted of his first impeachment in February 2020

Senate Minority Leader Mitch McConnell has proposed an impeachment schedule that will start early next month

Senate Minority Leader Mitch McConnell has proposed an impeachment schedule that will start early next month

Senate Majority Leader Charles Schumer has already said ‘there will be a vote on convicting the president for high crimes and misdemeanors; and if the president is convicted, there will be a vote on barring him from running again.’ 

Other prominent signers on the letter, which was reported by Politico, included Ronald Reagan solicitor general Charles Fried and Michigan State University law professor Brian Kalt, an expert on peculiarities of the Constitution such as impeachment of former officials and the 25th Amendment.  

Calabresi, who calls himself an originalist Republican, also penned an op-ed in the New York Times calling Trump’s pardons of former chief strategist Steve Bannon as ‘corrupt’ and possible obstruction of justice, since the longtime advisor could have potentially incriminating information on Trump. 

The signers cross the political spectrum, and take no position on whether Trump should be convicted, only on the validity of the procedure, which Trump loyalist Sen. Tom Cotton (R-Ark.) has said is unconstitutional.

‘The Constitution’s impeachment power has two aspects. The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power,’ they write.

The Constitution grants the House the ‘sole power’ to impeach and the Senate the sole power to try all impeachments. The House impeached Trump for ‘incitement of insurrection’ after the MAGA riot of January 6. 

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