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A former federal judge insists that the U.S. Senate has no constitutional authority to try to impeach President Trump after he leaves office and becomes a private citizen, in what appears to be a common-sense reading of the U.S. Constitution.
In the aftermath of the U.S. Capitol riot, the Democrat-controlled U.S. House is expected to approve at least one article of impeachment as early as today. An impeachment trial in the upper chamber, if there is one, is not expected to start until sometime after Inauguration Day, however.
Given the current timetable, according to ex-U.S. Court of Appeals Judge J. Michael Luttig who also worked in the Reagan and G.W. Bush administrations, the effort might amount to perhaps just political theater.
“Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment,” Luttig wrote.
“Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.”
“The reason for this is found in the Constitution itself. Trump would no longer be an incumbent in the Office of the President at the time of the delayed Senate proceeding, and would no longer be subject to ‘impeachment conviction’ by the Senate, under the Constitution’s Impeachment Clauses. Which is to say that the Senate’s only power under the Constitution is to convict — or not — an incumbent president,” Luttig asserted, citing Article 1, Section 3, and Article II, Section 4, of the founding document.
If he were to be convicted in the Senate, Trump would be disqualified from running in 2024, which may be the end-game for the Democrats and the Never-Trump Republicans.
— Conservative News (@BIZPACReview) January 10, 2021
If the dispute over the Senate’s impeachment jurisdiction wound up in court, “It is highly unlikely the Supreme Court would yield to Congress’s view that it has the power to impeach a president who is no longer in office when the Constitution itself is so clear that it does not,” Luttig concluded.
Luttig was a judge on the Richmond, Va.-based U.S. Court of Appeals for the Fourth Circuit from 1991 to 2006 and later became general counsel for Boeing.
Harvard Law professor emeritus and lifelong Democrat Alan Dershowitz also contends that the Senate lacks the legal authority to move ahead.
“But the case cannot come for trial in the Senate because the Senate has rules, and the rules would not allow the case to come to trial until – according to the majority leader – until 1 p.m. on Jan. 20, an hour after President Trump leaves office,” he told Sunday Morning Futures host Maria Bartiromo.
“And the Constitution specifically says, ‘The President shall be removed from office upon impeachment.’ It doesn’t say the former president. Congress has no power to impeach or try a private citizen, whether it be a private citizen named Donald Trump or named Barack Obama, or anyone else. The jurisdiction is limited to a sitting president, and so there won’t be a trial.”
— Conservative News (@BIZPACReview) January 11, 2021
While disagreeing with Trump’s remarks at the rally, Dershowitz also slammed Democrats for trying to impeach the president for exercising his First Amendment rights to engage in political free speech, which he claimed could be weaponized by one party against the other going forward.
Guilt by association has never been part of the American tradition, at least prior to the onset of Trump derangement syndrome.
“Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected and refused to do so as rioting broke out at the inauguration. Many of the same members have used the same type of rhetoric to ‘take back the country’ and ‘fight for the country.’ The concern is that this impeachment will not only create a precedent for an expedited pathway of ‘snap impeachments’ but allow future Congresses to impeach presidents for actions of their supporters,” George Washington University law professor and self-described liberal Jonathan Turley warned.
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