A post-departure Senate impeachment trial of a former President is unconstitutional. Just read the plain text of the constitution, which talks of a trial of the president, not a former president. None of the opinion to the contrary explains the absense of the word “former” (or similar) in the text of the constituational impeachment provisions.

For legal analysis, see my prior posts:

As mentioned in that last linked post above:

The arguments in favor of a post-departure Senate trial are convoluted, whereas the argument against simply looks at the text of the Constitution. There are arguments that in a small number of non-presidential cases the Senate attempted a post-departure impeachment trial, but those instances are not really on point, and in any event, because the Senate on a small number of prior occasions may have unconstitutionally grabbed power does not justify doing again here.

Add to it, Jonathan Turley’s response to those who claim that a very small number of non-presidential impeachment trial attempts are precedent – Turley concludes they are not. Moreover, the notion of “precedent” as we normally use it for court cases does not apply. How the Senate acted in a non-presidential case in the 1800s is not binding on the current Senate — what is binding is the text of the Constitution.

There are reports that Chief Justice Roberts will not preside, because he can only preside at the trial of “the President,” and Trump no longer is the President, but I’ve not seen anything directly from Roberts or SCOTUS on that.

Enter one Mitt Romney, who just announced that he considers the trial to be constitutional based on the “preponderence” of opinion.

Romney endorses “the preponderance” of opinion that “an impeachment trial is appropriate after someone leaves office.”

Trump’s conduct “calls for a trial,” he says. “If we’re going to have unity … it’s important to recognize the need for accountability, for truth and justice.”

Romney repeated this assertion on Fox News:

Fox’s Chris Wallace asked Romney if he agreed with Republicans calling to throw out the article on procedural grounds, arguing it is unconstitutional to convict a former official.

“The Democrats have the majority in the Senate and I doubt they’re going to go along with that move,” Romney, the Republicans’ 2012 presidential nominee, answered. “At the same time, if you look at the preponderance of the legal opinion by scholars over the years … the preponderance of opinion is that yes, an impeachment trial is appropriate after someone leaves office.”

Wallace went on to ask the Utah senator his opinion about President Biden’s appeals to unity at his inauguration.

“I think it’s appropriate for us to have unity of purpose, unity of heart,” Romney said. “At the same time I think there are some actions that the president is taking that are going to lead to some anger and division.”

He specifically cited Biden’s cancellation of the Keystone XL Pipeline and termination of new leases for oil, gas and coal extraction on federal land.

In other news, Romney announced that Chris Christie, Larry Hogan, Tom Cotton, and Ben Sasse are the future of the Republican Party:

Sen. Mitt Romney on GOP future: “There’ll be new faces and new voices, perhaps some from the past, like Gov. Chris Christie. Larry Hogan is a new face on the front, Tom Cotton, Ben Sasse. I think those individuals will help define the Republican Party as we go forward.”

I think Cotton will be a leading voice, but not the others.


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