Major conservative attorney explains why Trump’s second impeachment trial is perfectly constitutional

Major conservative attorney explains why Trump’s second impeachment trial is perfectly constitutional

With former President Donald Trump's second impeachment trial set to begin this week, many Republicans in the U.S. Senate are arguing that the trial is unconstitutional because Trump is no longer president — and critics have responded that they are simply trying to avoid offending Trump's MAGA base. Conservative Republican attorney Charles J. Cooper, a.k.a. Chuck Cooper, has weighed in on the subject, stressing that there is nothing in the U.S. Constitution that prevents a former president from facing an impeachment trial.

Trump, following the January 6 assault on the U.S. Capitol Building, was impeached by the U.S. House of Representatives for incitement to insurrection — making him the first president in U.S. history to be impeached twice. And his trial will also mark the first time in U.S. history that the impeachment trial in the Senate came about after the person in question left office.

The New York Times' Michael J. Schmidt explains, "Since the rampage, Republicans have made little effort to excuse Mr. Trump's conduct, but have coalesced behind the legal argument about constitutionality as their rationale for why he should not be tried, much less convicted. Their theory is that because the Constitution's penalty for an impeachment conviction is removal from office, it was never intended to apply to a former president who is no longer in office. Many legal scholars disagree, and the Senate has previously held an impeachment trial of a former official — though never a former president."

In an op-ed published by the Wall Street Journal on February 7, Cooper lays out some reasons why Republican senators are wrong when they claim that it is unconstitutional to hold an impeachment trial for a former president.

"If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling," Cooper notes. "But it isn't. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: 'disqualification to hold and enjoy any office of honor, trust, or profit under the United States.'"

Democratic Rep. Jamie Raskin, the trial's lead impeachment manager, isn't pushing for a conviction so that Trump will be removed from office — Trump left office on January 20, when Joe Biden was sworn in as president and Kamala Harris was sworn in as vice president. But Raskin is hoping that Trump won't be able to hold office again. If Trump isn't convicted — and a conviction is unlikely given how many Republican senators don't think the trial should even be taking place — he will be able to run for president again in 2024. U.S. presidents are limited to two terms, but they don't have to be two conservative terms.

"Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders," Cooper writes in his WSJ op-ed, "it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders."

Assuming that all 50 Democrats in the U.S. Senate find Trump guilty of incitement to insurrection, at least 17 Republicans would have to join them in order for the former president to be convicted.

No president in U.S. history has been convicted in an impeachment trial. Like President Andrew Johnson and President Bill Clinton before him, Trump was found "not guilty" during an impeachment — and President Richard Nixon, overwhelmed by the Watergate scandal in August 1974, resigned before a Senate trial could come about.

Enjoy this piece?

… then let us make a small request. AlterNet’s journalists work tirelessly to counter the traditional corporate media narrative. We’re here seven days a week, 365 days a year. And we’re proud to say that we’ve been bringing you the real, unfiltered news for 20 years—longer than any other progressive news site on the Internet.

It’s through the generosity of our supporters that we’re able to share with you all the underreported news you need to know. Independent journalism is increasingly imperiled; ads alone can’t pay our bills. AlterNet counts on readers like you to support our coverage. Did you enjoy content from David Cay Johnston, Common Dreams, Raw Story and Robert Reich? Opinion from Salon and Jim Hightower? Analysis by The Conversation? Then join the hundreds of readers who have supported AlterNet this year.

Every reader contribution, whatever the amount, makes a tremendous difference. Help ensure AlterNet remains independent long into the future. Support progressive journalism with a one-time contribution to AlterNet, or click here to become a subscriber. Thank you. Click here to donate by check.

DonateDonate by credit card

Close

Thanks for your support!

Did you enjoy AlterNet this year? Join us! We're offering AlterNet ad-free for 15% off - just $2 per week. From now until March 15th.