There are many reasons it’s constitutional to convict an impeached former president. Here’s the simplest and strongest one:
Some Republicans, having run out of other excuses, have trying to hide behind one last desperate measure to avoid holding Trump accountable: claiming it’s unconstitutional to conduct impeachment proceedings over a former president.
Numerous esteemed legal scholars have knocked down this excuse on several grounds, including that nothing in the text of the Constitution bars Congress from impeaching, convicting and disqualifying former officials from holding future office, and that such a standard would signal to future presidents that they are impervious to consequences for any action they take during a lame-duck period,.
Those are strong and compelling arguments. But there’s an even stronger and simpler one: Because the Founding Fathers said so.
Article II, Section 4 of the Constitution provides that a sitting president shall be removed from office upon conviction by the Senate. If a president is convicted, removal is automatic, instantaneous, non-optional, and requires no additional action by the Senate. They’re convicted, they’re gone, period. For all intents and purposes, conviction of a sitting president is indistinguishable from removal – they are one and the same.
Aside from removal, the only other penalty the Constitution allows the Senate to impose is disqualification from ever again holding federal office. This penalty is levied by taking a second vote; if a majority of Senators agrees, the former president is disqualified.
Read what I just wrote: “the FORMER president is disqualified” …
And that’s it right there in a nutshell. This second vote for disqualification is taken AFTER the vote on conviction and removal. This means that, at the time the second vote on disqualification is taken, the impeached president is no longer president. Therefore, the Senate is voting to penalize a FORMER president.
Why does that matter? Because it is proof positive that the Founding Fathers granted Congress the right to retain its jurisdiction over a former president even after he leaves office and that the fact that he is no longer in office does not revoke jurisdiction or halt impeachment proceedings begun when he was still president.
Conservative Republicans are quick to insist that we must look to the Founders’ “original intent” when interpreting the Constitution. In this case, the Founders’ original intent is right there in plain English.
So, while there are many reasons that the Republicans’ argument against trying and convicting Donald Trump post-presidency fails, the simplest one is “Because the Founders said so.”