Legal scholars, including at Federalist Society, say Trump can be convicted

[Nevilledog]

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Natasha Bertrand
@NatashaBertrand
Exclusive: Legal scholars, including at the Federalist Society, say Trump can be tried and convicted even though he's out of office—rebutting an argument by a growing group of Republican senators who say it would be unconstitutional.

Legal scholars, including at Federalist Society, say Trump can be convicted
Some Republicans have argued a former president can't be the target of an impeachment trial.
politico.com
12:05 PM · Jan 21, 2021

https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089

[StarfishSaver]

1. I have no doubt he can be convicted

I don't think he can be impeached after he leaves office - Congress doesn't have power to impeach anyone other than the president, vice president, federal judges and other "civil Officers of the United States." Once out of office, a president is out of their jurisdiction. But once the House indicts a sitting president, I believe the House and Senate maintain jurisdiction over the matter, including the ability for the Senate to convict them and mete out the only punishment available at that point, disqualification from holding office in the future.

[CaptainTruth]

2. Question:

Do you believe the Senate can hold the 2nd vote, to bar from office (simple majority) even if the 1st vote fails (the vote to convict doesn't receive 2/3 of members present)?

I've seen legal "experts" argue both ways. Some say that if the 1st vote fails to convict, the process stops, & the Senate can't hold the 2nd vote. Others say the Senate can hold both votes even if the first one fails. I've read that section of the Constitution & it's not clear to me.

Thanks!!!

[StarfishSaver]

3. They can't vote to disqualify if they didn't vote to convict

Disqualification is one of the only two penalties for conviction: removal and disqualification. If the president is still in office, removal is mandatory and automatic. If he's convicted, he's removed from office on the spot without any additional vote or other action needed - essentially conviction and removal are the same thing. But disqualification is a separate, non-mandatory penalty that can be imposed with a second, majority vote. But although it is separate, it's still a penalty for conviction and conviction is required before it can be imposed.

I don't why any legal expert who actually read the Constitution would argue otherwise. It doesn't make any sense. It's like saying that a defendant acquitted by a jury of murder could nevertheless be sent to prison or executed for the crime.

[CaptainTruth]

4. Ok, thanks, clearly stated & concise, as always.

That addresses barring from office as part of an impeachment trial, got it.

I think what I saw might have been an argument that Trump could potentially be barred from office under another section of the Constitution dealing with insurrection, even in the absence of an impeachment conviction. I think Lawrence Tribe explained it, but of course unless Trump personally led the charge on the Capitol it could be a legal stretch to invoke it.

I'm no expert on all this stuff & I've been doing my best to learn, so I'm sincerely grateful for all of your legal clarifications. Know that your time spent typing is not wasted.

[StarfishSaver]

5. That makes more sense!

Yes, the 14th Amendment bars anyone from office who has engaged in insurrection BUT ...

The 14th Amendment also prohibits anyone from being deprived of their rights without due process of the law. I think that would mean a president couldn't be denied office without due process - and that Congress couldn't simply determine that a president had engaged in insurrection and then disqualify him therefore. There would have to be an independent judicial determination of guilt before Congress could act on it. So that alternative wouldn't be as easy as it may initially sound.

[Gothmog]

6. Cool

[Gothmog]

7. Legal scholars, including at Federalist Society, say Trump can be convicted

I do not believe that this is even a close question https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089

Former President Donald Trump can be convicted in an impeachment trial for his role in inciting the Capitol insurrection on Jan. 6 even though he is no longer in office, a bipartisan group of constitutional law scholars wrote in a letter Thursday.

“We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation,” wrote the signatories, which include the co-founder and other members of the conservative Federalist Society legal group. “But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”

More than 150 legal scholars signed on to the letter, which was obtained by POLITICO. They include Steven Calabresi, the co-founder of the Federalist Society; Charles Fried, who served as solicitor general under Ronald Reagan and is now an adviser to the Harvard chapter of the Federalist Society; Ilya Somin, a law professor at George Mason University and adjunct scholar at the libertarian Cato Institute; and Brian Kalt, a law professor at Michigan State University and leading scholar on the specific question of whether former officials can be impeached.

The House impeached Trump last week, for the second time, in a 232-197 vote for "incitement of insurrection” following the attack on the Capitol by a pro-Trump mob that left five people dead. As the impeachment process moves into its next phase in the Senate, the signatories of the letter are seeking to counter an argument that has been gaining steam among some Republican senators: that it would be unconstitutional for the Senate to hold an impeachment trial for Trump now that he is a private citizen.