Name: Sen. Rand Paul is wrong. The Trump impeachment trial is constitutional, and here's why
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Sen. Rand Paul is wrong. The Trump impeachment trial is constitutional, and here's why

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Kent Greenfield and Eugene MazoOpinion contributorsView CommentsWhen Donald Trump’s second impeachment trial begins next week, Republican leaders will have little appetite for defending the former president’s behavior.Senate Minority Leader Mitch McConnell has indicated that when he incited an insurrection against Congress, and he has not ruled out voting against Trump in the Senate trial. House Minority Leader Kevin McCarthy has called on Trump to “accept his share of responsibility.”This should not surprise us; members of the House and Senate and their staffs were placed in great physical danger on Jan.&nbsp;6. Some of the members of the mob incited by Trump were searching for Vice President Mike Pence to lynch him for having the audacity to follow his constitutional duty to count Joe Biden’s electoral votes.'Start wearing a mask':If the Senate trial turns on Trump’s actions, he should be convicted. If Trump’s efforts to overturn the results of our election by inciting a violent mob to storm Congress and impede it from counting the states’ electoral votes is not an offense impeachable under our Constitution, then nothing is. Trump is only the third president in American history to have been impeached, and the first to have been impeached twice. He is also the first president whose impeachment trial, which begins next week, will take place after he is out of office.Several members of the U.S. Senate, led by Kentucky Sen. Rand Paul, have recently argued that Mr. Trump should avoid being convicted not because he is blameless Paul moved to dismiss the charges against Trump last week, saying that impeachment is a remedy against a sitting president but not a past one. Although Paul’s motion failed, it . If those totals hold, Trump will avoid conviction by the necessary two-thirds vote of the Senate.Trump’s lawyers are now picking up on this line of defense as well. But unfortunately for Trump —and for Senator Paul — the Constitution does not bar the Senate from trying and convicting Trump. It is important to understand why.Let’s begin with the text. Impeachment is a two-stage process. First, the House of Representatives impeaches president or other government official by formally drafting and approving articles of impeachment. Second, a trial is held in the Senate, with the senators taking an oath and sitting as jurors. The Constitution says the “Senate shall have the sole power to try all impeachments.” The key word here is “all.” No one questions the House’s authority to impeach Trump, since he was in office at the time. Now that he has been impeached, the word “all” indicates the Senate can try his case. The text does not say “all impeachments unless the official has left office.”Related:As another Kentuckian, the constitutional scholar Michael McConnell, has argued, the use of “all” is expansive and the Senate should read it that way.When we consider the penalty the Senate can impose for an impeachable offense, it makes even more sense that Trump’s trial can take place after he has left office. “Judgement in cases of impeachment,” the Constitution tells us, “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.” It is too late for the Senate to remove Trump from office; but the Senate would still be within its authority to disqualify him from holding office again.Some suggest that the word “and” in this clause means that disqualification should not stand alone as a remedy. But a better reading is that this provision merely creates a ceiling for the penalty. It does not indicate that both penalties are necessary, and the Senate has long imposed its two penalties separately.History stands against&nbsp;Paul’s argument as well, for the Senate has tried a former official in the past. President Ulysses S. Grant’s secretary of war, William Belknap, was corrupt. He resigned to avoid an imminent impeachment vote, but the House impeached him anyway. The House manager for Belknap’s trial was Kentucky Congressman (and later Governor) James Proctor Knott. He argued that a refusal by the Senate to try such cases would leave it subject to “the will and pleasure of the accused.” The Senate agreed, and it tried Belknap after he had left office.If the Senate did not have the power to try former officials, then Congress would be powerless to disqualify all corrupt officials from holding future office who had the foresight to resign right after they had been impeached.Impeachment:The structure of the Constitution also suggests that the Senate could try a president who has been impeached, even after he leaves office. Before the 20th&nbsp;Amendment was adopted in 1933, the inauguration of a new president took place not in January but in March. The period from November to March would provide a very long time for a lame-duck president to conduct mischief if impeachment were not available as a remedy. The president’s duty to “preserve, protect, and defend” the Constitution does not end on Election Day in November; rather, it endures throughout his full term. It is difficult to imagine a situation that would have worried the framers more than having a lame-duck president spend his last days in office attacking the results of an election and whipping his supporters into a frenzy to overturn it.Paul should not hide behind weak constitutional arguments to avoid holding Donald Trump accountable. If he thinks what Trump did was defensible, he should say so. If he does not, then he should vote to convict him.Kent Greenfield, a Kentucky native, is a law professor at Boston College Law School; Eugene Mazo is a law professor at the University of Louisville Louis D. Brandeis School of Law.Politics:View Comments

Kent Greenfield and Eugene MazoOpinion contributorsView CommentsWhen Donald Trump’s second impeachment trial begins next week, Republican leaders will have little appetite for defending the former president’s behavior.Senate Minority Leader Mitch McConnell has indicated that when he incited an insurrection against Congress, and he has not ruled out voting against Trump in the Senate trial. House Minority Leader Kevin McCarthy has called on Trump to “accept his share of responsibility.”This should not surprise us; members of the House and Senate and their staffs were placed in great physical...

Sen. Rand Paul is wrong. The Trump impeachment trial is constitutional, and here's why

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