Senator Questions Constitutionality of Post-Presidential Impeachment Trial

Sen. Joni Ernst (R-Iowa) speaks to members of the media after the weekly Senate Republican Policy Luncheon at Hart Senate Office Building on Capitol Hill in Washington on Sept. 9, 2020. Alex Wong/Getty Images

Sen. Joni Ernst (R-Iowa) said it is likely unconstitutional to carry out a Senate impeachment trial of a president after they leave office.

President Donald Trump was impeached by the House earlier this month over his remarks that he made before the Capitol was breached on Jan. 6, despite the president calling on his supporters to “stay peaceful.”

“My overall question is: Why are we doing this when the president is out of office tomorrow?” Ernst told reporters on Tuesday. When asked about whether it would be constitutional to try Trump when he leaves office, Ernst said, “I don’t think it is.”

“I’ve read arguments on both sides, but he’s not our president after tomorrow. So the only reason I can see is that Democrats want to further divide the nation. And [I’m] asking President-elect Joe Biden, ‘Please, let’s move forward,’” she added.

Other GOP senators have questioned whether it would be constitutional to impeach a president after they leave office. Some legal experts, notably Harvard Law professor emeritus Alan Dershowitz, said the bid would violate the Constitution.

Some Republicans, including Sen. Lindsey Graham (R-S.C.), have called on Sen. Chuck Schumer (D-N.Y.) to hold a vote to dismiss the impeachment articles after they are transmitted from the House. Meanwhile, House Speaker Nancy Pelosi (D-Calif.) has not clarified when she will transmit them.

“We just have to move forward, and they could have done other types of procedures in the House,“ Ernst said. ”They chose to move forward with impeachment. We need to start healing, I don’t think this does that.”

The Senate has never held a trial for a former president.

“The impeachment power exists to protect the Nation from the harm that an incumbent president might inflict upon the Nation were he to remain in office, not to vindicate political grievances after a president has left office,” Graham wrote in a letter to Schumer over the past weekend.

On Sunday, Dershowitz—who represented Trump during his Senate impeachment trial in early 2020—said a post-presidential impeachment trial isn’t supported by the Constitution.

“It will be unconstitutional, but that probably won’t bother the senators,” Dershowitz told Fox News on Sunday. “The Constitution is very clear. The subject, the object, the purpose of impeachment is to remove a sitting president. And there are two precedents. One is very obvious. When President Nixon resigned in anticipation of being impeached and removed, there was no effort to impeach him after he left office.” Former President Richard Nixon opted to resign instead of facing the possibility of a Senate trial in the early 1970s.