Mitch McConnell remains the Senate Majority Leader until the new administration takes office next week. Following the impeachment of President Trump yesterday, Senator McConnell issued the following statement regarding the Senate schedule:
The House of Representatives has voted to impeach the President. The Senate process will now begin at our first regular meeting following receipt of the article from the House.
Given the rules, procedures, and Senate precedents that govern presidential impeachment trials, there is simply no chance that a fair or serious trial could conclude before President-elect Biden is sworn in next week. The Senate has held three presidential impeachment trials. They have lasted 83 days, 37 days, and 21 days respectively.
Even if the Senate process were to begin this week and move promptly, no final verdict would be reached until after President Trump had left office. This is not a decision I am making; it is a fact. The President-elect himself stated last week that his inauguration on January 20 is the ‘quickest’ path for any change in the occupant of the presidency.
In light of this reality, I believe it will best serve our nation if Congress and the executive branch spend the next seven days completely focused on facilitating a safe inauguration and an orderly transfer of power to the incoming Biden Administration. I am grateful to the offices and institutions within the Capitol that are working around the clock, alongside federal and local law enforcement, to prepare for a safe and successful inauguration at the Capitol next Wednesday.
As a result, no Senate trial will be held and Trump cannot be tried or convicted before he has left office. Can the Senate try and convict him once he has already left office? Former Fourth Circuit Judge Michael Luttig argues in this Washington Post column that a Senate trial would be unconstitutional.
Luttig argues: “Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment.” The Constitution’s impeachment clauses presuppose that impeachment and removal of a president happen while in office.
As an example, Judge Luttig cites Article II, Section 4: “The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”
He also cites Article I, Section 3, which reads in part: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
What a wonderful way to kick off the Harris/Biden administration.