Congressional Research Service Explanation of Impeachment and Trial of a Former President

The Congressional Research Service in Washington, D.C. has published a brief document outlining the legalities surrounding Impeachment and Trial of a Former President:

"The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office. It also accords with the British impeachment of Warren Hastings two years after his resignation as the governor-general of Bengal. The impeachment occurred during the Convention debates and was noted expressly by the delegates without expressing disapproval of the timing. While the Framers were aware of the British and state practices of impeaching former officials, scholars have noted that they chose not to explicitly rule out impeachment after an official leaves office. But the Framers nonetheless made other highly specific decisions about the impeachment process that departed from the British practice, such as requiring a two-thirds majority in the Senate for a conviction when the British system allowed conviction on a majority vote."

"That said, there are textual arguments against Congress’s authority to apply impeachment proceedings to former officials. The plain text of the Constitution, which states that '[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment ... and Conviction,' could be read to support the requirement that the process only applies to officials who are holding office during impeachment proceedings."

The trial of former US President Donald Trump will begin next month in the American Senate. 

The US House of Representatives impeached him for a second time earlier in January, just a week after the deadly extreme rightwing attacks on the US Capitol in Washington that the former leader is accused of having deliberately incited with his rhetoric. Five people died in the riots.

Earlier posts on the topic include:

• US Glossary on Treason, Sedition, Insurrection (The Marshall Project, January 8, 2021): "In the 24 hours since a mob incited by the president of the United States stormed the Capitol attempting to halt the functioning of American democracy, the news media and everyone else have been at a loss for words to describe what happened. Was it a coup, or an insurrection? Did anyone commit treason, or sedition? What exactly does it mean to incite a crime, or to riot? These aren’t just word games. Knowing how these terms are specifically defined under federal law will have consequences for the most violent of the rioters who have been or could be arrested by federal authorities—and also for Donald Trump and others who instigated the crowd’s actions."
• The Capitol Riot: Documents You Should Read (National Security Archive, January 13, 2021): "The Pentagon’s timeline of its response to the January 6, 2021 mob attack on the U.S. Capitol features multiple discrepancies with the public record, while the first federal indictment of mob participants details the specific legal charges that likely will be brought against others, according to the documents in the National Security Archive’s first 'January 6 Sourcebook' posted today." [The Archive based at George Washington University combines the roles of investigative journalism centre, research institute on international affairs, and library and archive of declassified U.S. documents]
• Questions to Guide an Investigation of the Capitol Attack (Just Security, New York University School of Law, January 11, 2021): "The invasion of the United States Capitol was an entirely predictable event, which makes the wholesale security collapse all the more unconscionable. Threats on social media grew more frequent and specific after President Donald Trump called on his supporters to gather in Washington, D.C., and push Congress to overturn the election results. Somehow though, several security leaders said they could not have imagined the violence that happened on January 6. Congress should establish a commission to investigate the failure and make recommendations to prevent it from happening again, including by taking on its underlying causes. These are the questions that should guide the effort."
• Could Trump face charges for speech before Capitol riot? Experts differ on Brandenburg impact (ABA Journal, January 14, 2021): "Could a 1969 case involving a Ku Klux Klan leader protect President Donald Trump from incitement charges in connection with the Jan. 6 riot on the U.S. Capitol? Constitutional law experts offer differing opinions on the impact of the case, Brandenburg v. Ohio. The decision held that advocating the use of force is protected under the First Amendment unless it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' The defendant in the case was Klan leader Clarence Brandenburg, who was charged under an Ohio law for advocating violence during a rally."
• Federal Criminal Law: January 6, 2021, Unrest at the Capitol (Congressional Research Service Legal Sidebar, January 12, 2021): "This Sidebar focuses ... on three specific categories of federal criminal statutes that may have been violated by some of the participants in the unrest at the Capitol: (1) crimes involving federal property; (2) crimes against persons; and (3) crimes against government authority. (Additionally, though not discussed further in this Sidebar, inchoate crimes like attempt or conspiracy to commit the substantive crimes described below or other crimes, as well as accomplice liability, may be relevant)."
• Domestic Terrorism and the Attack on the U.S. Capitol (Congressional Research Service Insight, January 13, 2021): "In light of this incident and the violent threat to the operation of the U.S. Congress, policymakers may be interested in whether this incident may be treated as domestic terrorism and if the participants are domestic terrorists, among other issues. This Insight discusses whether or not participants and their actions may be categorized as domestic terrorists and domestic terrorism, respectively, and issues around designating domestic fringe groups, such as the Boogaloo Bois and Proud Boys who were allegedly involved in the attack, as terrorist organizations. It concludes with possible next steps for Congress."
• Siege at the Capital – The National Security Law Perspective (American Bar Association podcast, January 12, 2021): panelists are Professor William Banks, Chair of the ABA Standing Committee on Law and National Security Advisory Committee; Professor Mary DeRosa, Georgetown University Law School; Professor Harvey Rishikof, Temple University