WASHINGTON (NEXSTAR) – After the House impeached President Trump for the second time, it is now up to the Senate to decide whether to hand him his first conviction.
Senate Majority Leader Mitch McConnell, R-KY, has said he will not call senators back early for a trial so it will happen during the Biden White House.
Senate Democrats want to ensure President Trump cannot run for office again, but it is unclear if enough Senate Republicans will agree with them to make it a reality.
“You cannot remove somebody from office who no longer has that office,” said John Malcolm, the vice president of the Heritage Foundation’s Institute for Constitutional Government.
Malcolm said questions remain about whether the Senate has the constitutional authority to hold a trial with President Trump already out of office.
“After January 20th, Donald Trump is not going to be the president, the vice president or a civil officer of the United States,” he said. “He is going to be a private citizen.”
That’s why Sen. Tom Cotton, R-AR, is already a no vote. In a statement, Cotton said, “The Founders designed the impeachment process as a way to remove officeholders from public office—not an inquest against private citizens.”
“The stronger constitutional argument is that he cannot be tried in the Senate after January 20th,” Malcolm said. “However, I note that there is some historical precedent.”
In 1876, President Grant’s secretary of war resigned amid corruption accusations. The House impeached him anyway, and the Senate held a trial.
“While a majority of senators favored convicting him, two thirds did not so he was in fact acquitted,” Malcolm said.
Democrats will need 17 Republicans to reach the two-thirds requirement.
“It’s certainly more likely this time around than it was when the president was impeached in 2019,” Malcolm said.
Only after a conviction could the Senate then hold another vote to fulfill Democrats’ intentions of barring President Trump from ever running for federal office again.