I saw this tweet last night from Senator Rand Paul.  In it, he very confidently states that it would be unconstitutional for the Senate to try President Trump on the impeachment charges passed by the House of Representatives. He introduced a point of order that the trial would be unconstitutional.  Forty five Senators agreed with him.  And I don’t get his argument based on my reading on the Constitution.

The text of the Constitution is skimpy on the subject.  But here are the operative sections:

Art. I, section 2:

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Art. I, Section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

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.

Art. II, Section 4:

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.

And that’s it.  There’s no guidance on timing.  And what strikes me is the part I highlighted in Art. 1, Section 3 – that basically says the Senate has 2 types of authority – removal (which would require he still be in office) and disqualification (which doesn’t).

If the Senate is constitutionally stripped of its power to disqualify an office holder from holding further office if that office holder vacates the office before the conviction, I would think the Constitution would say so.  Indeed, to get to the conclusion that the Senate can’t conduct a trial solely on the question of disqualification would require effectively adding words “so long as the person is in office at the time of trial.”  But the whole idea of “strict construction” is that one does not add words to the text.  You go by what the words say, or by a very clear implication.  And there is neither here.

And, there is precedent for trying an office holder in the senate after resignation.    In 1876, the Senate tried William Belknap, President Grant’s Secretary of War, aftger Belknap had resigned.

This discussion isn’t about whether it’s a good idea for the Senate to proceed.  The question is solely whether the Constitution permits it.  It would be like asking whether a designated hitter can bat for the pitcher in an American League game.  Lots of people disagree on the merits of the DH, but the answer to the question – can a designated hitter bat – is answered by reviewing the rule book.

I haven’t seen any coherent argument for the position that a Senate trial would be unconstitutional.  And I’m not criticizing arguments I’ve heard.  I’ve just not really heard any.  And I’m genuinely interested in hearing it.  So, if anyone can provide the counter argument, will you do so? I’d really like to consider the point.