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Explained: Legal questions left unanswered by Trump’s impeachment trial

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Donald Trump’s impeachment trial has taken the U.S. government into new legal territory, highlighting unresolved questions about how to handle allegations of misconduct by a president about to step down.

The House of Representatives voted to impeach Trump for instigating the deadly Jan.6 attack on the U.S. Capitol by a pro-Trump mob, but the Senate acquitted him on Saturday by a vote of 57 to 43.

Here are some of the questions raised by the trial, questions that still lack definitive answers because the US Supreme Court has never had the opportunity to intervene.

Is it legal to hold a trial for the impeachment of a former president?

The Trump trial opened with a debate on a crucial question: Does the U.S. Constitution allow a former president to stand trial after leaving office? Trump’s lawyer argued that the text and purpose of the Constitution’s impeachment clause make it clear that the power of the Senate is limited to condemning a sitting president.

The Senate voted 56-44 to proceed with trial, effectively rejecting this argument. The 56 senators who voted to move forward were on solid legal grounds.

The majority of legal scholars who have studied the matter have concluded that a “late indictment” like Trump’s is legal. These experts believe that presidents who commit a mistake late in their term should not be immune from the very process the Constitution has created to hold them accountable.

Ultimately, the issue remains and likely will remain so unless the courts have the opportunity to intervene.

The Senate vote in Trump’s trial is not binding on future senators, so the issue could be reconsidered in a future impeachment trial, said Frank Bowman, a law professor at the University of Missouri. “Impeachment is a political process, not a legal process,” Bowman said. “No Congress can bind a future Congress on any of these points.”

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Must an impenetrable offense constitute a violation of US criminal law?

The Constitution provides that a president can be indicted for “serious crimes and misdemeanors”. Trump’s allies have argued that a wrongdoing must be a felony under U.S. law. Trump’s lawyers adopted this argument, saying there was no wrongdoing because, in their view, Trump had not engaged in “incitement” as that term has been interpreted in criminal proceedings. .

Academics have repeatedly rejected this argument, Bowman said. The history of the phrase “serious felonies and misdemeanors” establishes that it goes beyond criminal conduct, he said.

Michigan State University law professor Brian Kalt, who agrees with Bowman, said Congress has not “definitively resolved” the issue and that the issue will never be resolved by law. Supreme Court of the United States. The High Court made it clear in a 1993 case that the issue is fundamentally political and must be resolved by the Senate, Kalt said.

Is impeachment a viable mechanism to remedy presidential faults?

The Constitution makes it clear that only a simple majority of the House is needed to remove a president or charge him with wrongdoing. Sentencing a president, however, requires the support of two-thirds of the 100-member Senate, which is currently split 50 to 50 along party lines in a period of intense party spirit in Washington.

Kalt said Trump’s recent trial suggested the House was ready to impeach a president of the opposing political party, even though it knew it had little chance of securing a conviction.

This raises general questions about the purpose of impeachment, Kalt said, “What’s the point of impeachment when you walk into it knowing you’re not going to get a conviction?” What are we doing here? “

Kalt said the Trump trial was, in a sense, a “public broadcast” of the Democrats’ case against Trump for political and historical purposes. “Impeachment catches people’s attention in a way that nothing else could,” Kalt said.

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