Senate Republicans are set to argue that another impeachment trial for Donald Trump is unconstitutional because he is no longer in office.
A top conservative lawyer dismantled GOP senators' planned defense of Donald Trump, saying it is constitutional to hold an impeachment trial of a president who is no longer in office and that Republicans should judge Trump on his conduct rather than use a process argument to justify acquitting Trump.
Rather than defend Trump's actions on the merits, Senate Republicans have chosen to attack the process of impeachment, saying that because Trump is no longer in office, the impeachment trial is unconstitutional.
But in a Wall Street Journal op-ed, constitutional lawyer Chuck Cooper — a conservative lawyer who has worked with right-wing Sens. Ted Cruz of Texas and Tom Cotton of Arkansas, and has represented House Minority Leader Kevin McCarthy in a lawsuit against House Speaker Nancy Pelosi — said that argument is bunk.
"Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders," Cooper wrote.
Cooper was referencing a vote Sen. Rand Paul (R-KY) forced in late January, when 45 Republican senators voted to say that an impeachment trial of a former president is unconstitutional.
After the vote, Paul declared that Trump's conviction is not going to happen, declaring the trial "dead on arrival."
"If you voted that it was unconstitutional, how in the world would you ever vote to convict somebody for this?" Paul said on Jan. 26. "This vote indicates it’s over. The trial is all over."
But Cooper appeared to be trying to dissuade Republicans from using this procedural argument to justify why they wouldn't judge Trump on his actions.
"The senators who supported Mr. Paul's motion should reconsider their view and judge the former president’s misconduct on the merits," Cooper wrote.
Trump faces one count of inciting an insurrection after a mob of his supporters broke into the U.S. Capitol to try to block certification of President Joe Biden's victory. Trump encouraged the mob at a rally ahead of the attack, telling them to march to the Capitol and "fight." A number of the insurrectionists have said they were following Trump's orders.
The impeachment trial — the second Trump will face — begins on Feb. 9.
Published with permission of The American Independent Foundation.