by Mitch Kokai
Senior Political Analyst, John Locke Foundation
No one will be busy in Washington DC on January 20, right? No social events on the calendar? According to a new memo from Mitch McConnell and given to the Washington Post, any impeachment trial of Donald Trump would begin at the earliest on that day, no sooner than 1 pm ET — an hour after Trump won’t need to be removed from office anyway. …
… That might seem rather pointless, as Trump won’t be in the office at that point to be removed from it. However, an impeachment affords Congress the opportunity to bar Trump from any federal office in the future (as it does for impeachments of other federal officials), and that might be enough to pursue impeachment, especially for Democrats.
That does raise another question, though: can Congress impeach a private citizen who is no longer in federal office? The answer is — no one really knows. A year ago there was some significant debate over that point, but the only real consensus is that there is no consensus, and even more to the point, no certainty even among those who have an opinion. The Constitution provides Congress the authority to impeach presidents and vice presidents, judges, and “all civil officers” in Article II Section 4, an explicit list which would seem to preclude anyone who isn’t currently in one of those categories. Arguably, any such effort against a private citizen could conceivably be considered an act of attainder, which is explicitly prohibited by Article I, Sections 9 and 10. Under that theory, any prosecutorial action would have to take place in civil courts and not Congress. But until Congress tries it and the result gets challenged in court, it remains a mystery … sort of like presidential self-pardons.