The Constitution Makes Clear that the Senate Can't Try a Former President


In a 56-44 vote Tuesday, the United States Senate voted that its trial of former President Donald Trump does not violate the Constitution. Six Republicans joined with all 50 Democrats in determining that the Constitution does, in fact, allow for the trial of a private citizen.

This may come as something of a surprise, but they have absolutely no idea what they're talking about.

Article II, Section 4 allows only for the removal from office upon conviction in an impeachment trial "The President, Vice President and all civil Officers of the United States." Donald Trump is neither the President of the United States nor a civil officer of the United States, and thus cannot be removed from office. He is a private citizen, and thus is not subject to the jurisdiction of trial by the U.S. Senate.

Impeachment manager Jamie Raskin, a Democrat, rejected this proposition in his opening statement.

"Their argument is that if you commit an impeachable offense in your last few weeks in office, you do it with constitutional impunity," he said. "You get away with it. In other words, conduct that would be a high crime and misdemeanor in your first year as president and your second year as president and your third year as president, and for the vast majority of your fourth year as president, you can suddenly do in your last few weeks in office without facing any constitutional accountability at all.

"This would create a brand new January exception to the Constitution of the United States of America, a January exception. And everyone can see immediately why this is so dangerous. It’s an invitation to the president to take his best shot at anything he may want to do on his way out the door, including using violent means to lock that door, to hang onto the Oval Office at all costs, and to block the peaceful transfer of power. In other words, the January exception is an invitation to our Founders’ worst nightmare."

This is patently absurd. If a President or other government official commits a crime in the waning days of their term, they would be subject to the exact same penalties as any other citizen: Those handed out in a court of law.

Article I, Section 3 provides that "the party convicted [in the Senate] shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." In other words, were Trump to be convicted in the Senate, he could still face a criminal trial in either state or federal court for the same offense.

Herein lies the obvious answer to Raskin's "January Exception." A President who commits an impeachable offense in his last month in office would be held accountable in the criminal justice system.

Dan O'Donnell discussed this in depth in his opening monologue Wednesday. Click on the player below to listen and click here to subscribe to "The Dan O'Donnell Show" on iHeartRadio!