Is Donald Trump's Impeachment Trial Constitutional?

Former President Donald Trump's second impeachment trial is set to begin on February 9 and some Republicans in the Senate are already arguing that pressing ahead will be divisive and possibly even unconstitutional.

Senator Ron Johnson (R-WI) picked up this argument on Twitter on January 21, claiming that holding a Senate trial for a former president violated the U.S. Constitution.

"I believe an impeachment trial of a former president is unconstitutional and would set a very dangerous precedent," Johnson said.

"There is no provision in the Constitution for holding such a trial over a former president who is now a private citizen. Where would we get the authority to do so?"

Johnson's question seem to hinge on the fact that no former president has faced an impeachment trial.

While this is true, experts who spoke to Newsweek argued that there was precedent for former office holders being tried by the Senate.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University. He cited numerous historical examples that seem to undermine the claim that Trump's trial will be unconstitutional.

"There is precedent for the Senate to hold a trial of a former officer, but it has proven difficult to get to the two-thirds necessary to win a conviction in such circumstances," Whittington said.

"In 1876, the Senate went to trial and reached a verdict in the case of Secretary of War William Belknap, who had resigned in the hopes of avoiding an impeachment trial. The Senate rejected a motion to dismiss on the grounds that Belknap was no longer subject to the Senate's jurisdiction, but Belknap was not convicted.

"In 1913, the Senate reached a verdict on impeachment charges against circuit judge Robert Archbald. His articles of impeachment included charges of corruption when he had held a previous office of district court judge, and the Senate refused to dismiss those charges. But again, Archbald was not convicted on those charges (he was convicted on charges stemming from his service as circuit court judge).

"The more ambiguous case is the 1799 impeachment of former Senator William Blount. The Senate did dismiss that case with an ambiguous resolution, but the general reading is that the Blount case was dismissed because of doubts that the members of Congress can be impeached and that is the precedent that the House and Senate has preserved in the years since the Blount impeachment," he said.

Thomas J. Balcerski is associate professor of history at Eastern Connecticut State University. He agreed there was precedent for trying a former office holder and dismissed Republican claims to the contrary.

"Using the veil of the Constitution to criticize the legality, the constitutionality of the impeachment trial is kind of like a gloss on top of a political argument," Balcerski told Newsweek.

"In the realm of politics, Republican senators want to try to find reasons to, first of all, move tension away from former President Trump and secondarily to call into question the very proceedings themselves."

Balcerski also pointed to James Buchanan, president from 1857 to 1861, whom the Senate tried to censure in 1862—after he had left office and during the Civil War. Buchanan's leadership was often blamed for exacerbating conditions that led to the war.

Senators were discussing censure for actions Buchanan had taken while president and some of the debate was eerily similar to today's events. One senator argued it would be unfair to censure a former president who was now a private citizen. The Senate tabled a motion to contact Buchanan for his response to the censure effort and then failed to pick the issue up again.

"What the Senate was doing was saying we don't want to do this. We actually don't want to vote on the censure resolution," Balcerski said. "They never returned to this matter. It was a true killing by tabling. I think there's a very apt comparison between how the Senate discussed and treated President Buchanan and how it's now about to do so for President Trump."

The Senate, Balcerski explained, focused on procedure in the Buchanan case much as Republicans may do again in February. However, if today's senators can get beyond the constitutionality argument this time, they will be able to deal with the substantive allegations against Trump.

While some Republican senators will argue that the trial should not be taking place, historical precedent strongly suggests it is well within the Senate's authority to hold former office holders accountable.

Former President Donald Trump and Melania Trump
US President Donald Trump and First Lady Melania Trump make their way to board Marine One as they depart the White House in Washington, DC, on January 20, 2021. Trump will face a second impeachment trial on February 9. MANDEL NGAN / AFP/Getty Images