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Scott Walker Scott Walker

Scott Walker

Eric Litke
By Eric Litke January 28, 2021

Walker overreaches claiming Senate can’t convict Trump after departure

If Your Time is short

  • This is a point of constitutional debate, but the majority of scholars believe impeachment authority extends to a president who has left office.

  • In 1876, the Senate ruled a former secretary of war could face an impeachment trial for actions taken in office even though he had since resigned.

  • On Jan. 26, the Senate took a similar stance, voting 55-45 against an objection that proceeding would be unconstitutional.

Former President Donald Trump is staring down his second impeachment trial in as many years, but uncertainty looms over the unprecedented proceedings.

That’s because despite 245 years of history and 21 past impeachments by the U.S. House, the country has no direct precedent for an impeachment trial of a president who has left office.

The House impeached Trump Jan. 13, 2021, for his role inciting the Capitol mob on Jan. 6. A trial is set to begin Feb. 8 in the U.S. Senate, but, of course, Trump has since departed the White House, having lost the 2020 election to Joe Biden.

The resulting procedural question has given rise to an array of claims about what exactly the U.S. Constitution says on the matter, including one from former Wisconsin Gov. Scott Walker.

"The U.S. Senate cannot convict a former President," the longtime Republican politician said in a Facebook post Jan. 26. He then repeated the sentence nine more times for emphasis. Walker also repeated the claim on Twitter, truncated to four repetitions due to the 280-character limit.

But if 2020 taught us anything, it’s that saying something over and over on the internet doesn’t make it true.

So let’s take a closer look.

Arguments on both sides

Despite the confident assertion from Walker — now president of Young America’s Foundation, which seeks to introduce young people to conservative values — this is far from a settled topic.

The core Constitutional section here is Article II, Section 4, which says, "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." Article I specifies the two potential penalties in play are removal from office and disqualification from holding federal office in the future.

Removal is obviously off the table at this point, but disqualification is a highly relevant consequence given Trump is said to be considering a 2024 run for president.

The nonpartisan Congressional Research Service dove deep into the precedent and constitutional interpretation in a Jan. 15 publication. They summarized their findings this way:

"The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office," the six-page brief said. "Though the text is open to debate, it appears that most scholars who closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office."

Some key points the publication lists in support of a trial for a former president:

  • In 1876, the Senate ruled a former secretary of war could face an impeachment trial for actions taken in office even though he had since resigned (more on this in a bit).

  • The U.S. impeachment process was set up with the British system in mind, where former officials could be impeached. The framers made many "highly specific decisions about the impeachment process that departed from the British practice" but "chose not to explicitly rule out impeachment after an official leaves office."

  • Many scholars have argued simple logic dictates impeachment remain an option. If impeachment didn’t extend to someone no longer in office, any official could elude punishment by simply committing offenses late enough in the term, or by resigning once the impeachment process began. And Congress could never bar an official from holding future office as long as that person resigns first.

  • In the only discussion of the timing of impeachment at the Constitutional Convention of 1787, most members took it for granted that the President would be impeachable after he left office.

  • Former President John Quincy Adams clearly interpreted this as a non-expiring penalty. While serving as a Congressman after leaving the White House in 1846, he told Congress, "I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office." 

Key points against a trial for a former president

  • The plain text of the Constitution, that "[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment ... and Conviction," could be read literally as only applying to officials who are holding office during impeachment proceedings.

  • U.S. Supreme Court Justice Joseph Story wrote in his influential Commentaries on the Constitution of the United States (1833) that impeachment doesn’t apply to officials who have left their position because removal is no longer necessary.

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Supporting his claim, Walker leaned on the literal interpretation argument.

"The (constitutional) language does not refer to a former President," Walker said in a statement to PolitiFact Wisconsin. "Furthermore … the language clearly defines the judgement as ‘removal from Office, and disqualification to hold and enjoy any Office’ and it does not separate the two issues. The judgement is both, not either or."

We’ll note this and/or argument falls flat, however, as it flies in the face of history. The Senate has convicted and removed eight officials, but it chose to ban only three of them from holding future office. If the two were inextricably tied as Walker suggests, all eight would have been banned.

Senate Majority Leader Chuck Schumer is among those who have leaned on the logic argument.

"It makes no sense whatsoever that a president or an official could commit a heinous crime against our country and then defeat Congress’ impeachment powers … by simply resigning," Schumer, D-New  York, said on the Senate floor on Jan. 26.

Mitt Romney, the only Republican senator to vote to convict Trump in his first impeachment, told CNN Jan. 24, "I think it's pretty clear that the effort is constitutional" based on legal opinions he has reviewed. That viewpoint conflicts with most other Republican senators.

John Fortier, a specialist on Congress at the American Enterprise Institute, told PolitiFact National the problem is that "the constitutional language is not specific either way." He noted Schumer and Republican Rand Paul, R-Kentucky, both cited constitutional passages in arguing the two sides.

1876 impeachment may provide key precedent

Historical precedent is of particular importance when the Constitution doesn’t specify a course of action, and there is some in this case.

The highest-profile suspension of an impeachment process involved President Richard Nixon. No Senate vote was taken because Nixon resigned after an impeachment vote from the House.

The remaining possible penalty — a ban from holding federal office — didn’t apply since Nixon had already served two terms, making any Senate action moot. That also makes the situation a poor analogue for the pending Trump impeachment.

An 1876 case provides clearer parallels, however.

William Belknap, secretary of war under President Ulysses S. Grant, was brought up for impeachment by the House, but he hastily resigned hours before the House voted to impeach him.

When the matter moved to the Senate, Belknap argued the Senate had no jurisdiction since by the time the impeachment vote came up he "was, (and) ever since hath been, and now is, a private citizen."

The Senate disagreed. By a roll-call vote of 37-29, the Senate ruled Belknap was "amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached."

In the end Belknap was acquitted, with 22 of the senators who supported acquittal saying they did so on the grounds that his resignation barred impeachment. So the Senate conclusion was not unanimous or unambiguous, but it was passed and supported by the majority of the body.

Wrapping it up

Applying Belknap to the present situation, there’s a case that the argument for trying Trump is even stronger than for Belknap, since Trump was impeached by the House while he was still in office, noted Brian Kalt, a law professor at Michigan State University, who wrote a 2001 paper on the subject.

But there’s an even simpler argument for this being constitutional: The current Senate said so.

In a similar vote to that on Belknap’s objection, the Senate on Jan. 26 voted 55-45 to table an objection from Paul that a trial of a private citizen violates the Constitution. 

Constitutional matters in this vein are traditionally left to the branches of government to interpret on their own, rather than relying on the courts, the Congressional Research Service says. It described the tradition this way:

"The Supreme Court has noted not only that ‘each branch of the Government must initially interpret the Constitution’ when performing their ‘assigned constitutional duties,’ but also that once one branch develops a construction of its own powers, that interpretation ‘is due great respect from the others.’ This principle of developing constitutional meaning outside of the courts is especially applicable in the context of impeachment, where the manner by which the House and Senate exercise their powers has been largely immune from judicial review."

Our ruling

Walker said on social media that "The U.S. Senate cannot convict a former President."

There is constitutional ambiguity on this point. That’s something the Democrat-led Senate itself will decide as it steps into new historical territory considering the impeachment of a president after leaving office.

But we know at this point in history it’s an overreach to claim this is a settled matter, as Walker does here. If anything, the needle is pointing in the other direction based on the preponderance of legal opinion, Senate precedent and the Jan. 26 vote.

We rate this claim Mostly False.

Our Sources

Scott Walker, Facebook post, Jan. 26, 2021

Scott Walker, tweet, Jan. 26, 2021

United States House of Representatives, List of Individuals Impeached by the House of Representatives, accessed Jan. 27, 2021

Cornell Law School, U.S. Constitution, Article I, accessed Jan. 27, 2021

Cornell Law School, U.S. Constitution, Article II, accessed Jan. 27, 2021

Congressional Research Service, The Impeachment and Trial of a Former President, Jan. 15, 2021

Washington Post, Opinion: Yes, ex-presidents can be impeached, Jan. 26, 2021

Deschler’s Precedents of the United States House of Representatives, Volume 3, 1976

Senate Democrats, Majority Leader Schumer Floor Remarks On The Need For The Impeachment Trial Of Former President Donald Trump And Standing Against Sen. Paul’s Point Of Order, Jan. 26, 2021

PolitiFact, Can Congress impeach and remove a president who’s left office? A look at the history, Jan. 26, 2021

Washington Law Review, Volume 49, Number 1, Impeachment, 1973

Wall Street Journal, Most Republican Senators Reject Constitutionality of Trump Impeachment, Jan. 26, 2021

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Walker overreaches claiming Senate can’t convict Trump after departure

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