Trump supporters at a rally on Wednesday before the president told them to march on the Capitol. John Minchillo/Associated Press
The biggest question isn’t impeachment. It’s disqualification from future office.
If the House impeaches President Trump this week, it will still have almost no effect on how long he remains in office. His term expires nine days from now, and even the most rapid conceivable Senate trial would cover much of that time.
But the impeachment debate is still highly consequential. The Senate has the power both to remove Trump from office and to prevent him from holding office in the future. That second power will not expire when his term ends, many constitutional scholars say. A Senate trial can happen after Jan. 20.
And disqualifying Trump from holding office again could alter the future of American politics.
It’s worth pausing for a moment to reflect on how radical a figure Trump is. He rejects basic foundations of American government that other presidents, from both parties, have accepted for decades.
He has tried to reverse an election result and remain in power by persuading local officials to commit fraud. He incited a mob that attacked the Capitol — and killed a police officer — while Congress was meeting to certify the result. Afterward, Trump praised the rioters.
This behavior was consistent with Trump’s entire presidency. He has previously rejected the legitimacy of election results and encouraged his supporters to commit violence. He has tried to undermine Americans’ confidence in the F.B.I., the C.I.A., the military, Justice Department prosecutors, federal judges, the Congressional Budget Office, government scientists, government health officials and more. He has openly used the presidency to enrich his family.
In the simplest terms, Trump seems to believe a president should be able to do whatever he wants. He does not appear to believe in the system of the government that the Constitution prescribes — a democratic republic.
Yet there is a significant chance he could win the presidency again, in 2024. He remains popular with many Republican voters, and the Electoral College currently gives a big advantage to Republicans. If he is not disqualified from future office, Trump could dominate the Republican Party and shape American politics for the next four years.
If he is disqualified, it’s impossible to know what would happen, but this much is clear: A singularly popular figure who rejects the basic tenets of American democracy would no longer be eligible to lead it.
Members of the National Guard outside the Capitol yesterday. Anna Moneymaker for The New York Times
What are the basics of disqualification?
Article I, Section 3 of the Constitution says:
“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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The Constitution does not specify whether disqualification requires a two-thirds Senate vote, as conviction in an impeachment trial does, or only a majority vote. The Senate has previously used a majority vote.
The Senate has barred three people, all federal judges, from holding future office: West Humphreys (in 1862, for waging war against the U.S.), Robert Archbald (in 1913, for corruption) and Thomas Porteous (in 2010, for bribery and perjury).
The Senate has tried a former War Department secretary — William Belknap, in 1876 — after he resigned. Both the House and the Senate decided that Belknap could be tried after he had left office.
Disqualifying a president from future office, because of the stakes and lack of precedent, would probably come before the Supreme Court. History suggests that the court would be more likely to uphold a bipartisan congressional vote than a largely partisan one.
“If an impeachment begins when an individual is in office, the process may surely continue after they resign or otherwise depart,”
Michael Gerhardt of the University of North Carolina School of Law writes in the online publication Just Security.