Ahead of soon-to-be former President Trump's Senate trial, constitutional scholars disagree on whether the Founders intended for a president no longer in office to be tried by the Senate.



President Trump, having been impeached again, will face a trial in the Senate. But unlike the first time, he won't be in office. So does the Senate actually have the power to try an ex-president? Here's NPR's legal affairs correspondent, Nina Totenberg.

NINA TOTENBERG, BYLINE: The Constitution says that after the House of Representatives votes to impeach a president or any other civil officer, the case is sent to the Senate for a trial which, quote, "shall not extend further than to removal from office and disqualification from future office." Conviction requires a two-thirds vote. Barring Trump from future office after that would require only a majority vote. Scholars disagree about what the founders intended. Professor Michael Gerhardt, author of a book on impeachment, contends that the text of the impeachment clause is deliberately broad.

MICHAEL GERHARDT: There's no time limit that's set out in the Constitution that cuts off impeachment at some point.

TOTENBERG: But Columbia law professor Philip Bobbitt, also an impeachment expert, counters that the whole idea of impeachment is aimed at removal from office.

PHILIP BOBBITT: If you look at the Federalist Papers, getting the person out of office (laughter) is the object. And whether or not to include a disqualification is entirely discretionary.

AKHIL AMAR: That makes no sense at all.

TOTENBERG: Yale Law professor Akhil Amar.

AMAR: You want to give someone a get-out-of-jail-free card at the end of the administration so they can do anything they like and be immune from the high court of impeachment?

TOTENBERG: Yes, replies professor Bobbitt, citing the case of Richard Nixon as an example? Knowing that he was about to be impeached in the House and convicted in the Senate, Nixon resigned.

BOBBITT: Why didn't they go ahead and impeach him when he resigned? And the answer is they didn't believe that they had the authority to impeach someone who could not be removed, who was no longer, as the text requires, a civil officer.

TOTENBERG: But other precedents go the other way. In 1876, for instance, the corrupt secretary of war William Belknap handed in his resignation just minutes before the House voted to impeach him. But the Senate determined it had the right to try the former cabinet officer anyway, quote, "for acts done as secretary of war notwithstanding his resignation of said office." Prior to Trump, of course, only two presidents were actually impeached and tried in the Senate, Andrew Johnson and Bill Clinton. Though, neither was convicted. And no president has ever before been impeached twice. Yale's professor Amar argues that illustrates why it's important for the Senate to try Trump, and why the Founding Fathers considered impeachment more than removal but a mark of dishonor.

AMAR: It's about a marker for history. He's forever dishonored. And that's especially important at the end of someone's time in office because, ordinarily, if you do things in an earlier part of your administration, you can pay a price on Election Day.

TOTENBERG: President Trump ultimately did, in fact, pay a price on Election Day. But he then set about selling the idea that the election was rigged, that he had not lost but won in a landslide.


PRESIDENT DONALD TRUMP: We will not take it anymore. And that's what this is all about.

TOTENBERG: President Trump on January 6 shortly before the insurrection at the Capitol.


TRUMP: We will stop the steal.

TOTENBERG: And that, Amar argues, is the ultimate reason to try Trump in the Senate. His incendiary speech sparking the attack at the Capitol may have been the culminating event, but as the article of impeachment also charges, after the election, Trump sought to, quote, "subvert and obstruct the integrity of the democratic system," including an hour-long tape-recorded call to the Georgia secretary of state threatening the secretary if he did not, quote, "find" the votes needed to change the election outcome.

AMAR: It's the big lie, lying about the basic fact that the American people voted you out of office.

TOTENBERG: Columbia's professor Bobbitt agrees that it seems to frustrate the purpose of impeachment if the president can at the last minute skate away. But he adds that the Constitution still imposes those limitations.

BOBBITT: The last triumph of the demagogue would be if he had inflamed us so much that we trampled on these limitations to get at him.

TOTENBERG: Ultimately, the Senate itself will determine whether it can try Trump on impeachment charges. The Supreme Court ruled unanimously in 1993 that whatever rules the Senate adopts for impeachment are not reviewable by the court as long as the Senate follows three requirements specified in the Constitution, that the senators be under oath and affirmation, that a two-thirds vote is required to convict and that the chief justice presides when the president is tried.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.