It’s happening again.
Last month, in the final week of then-President Donald Trump’s presidency, the House voted 232-197 to impeach Trump for a second time, charging him with “incitement of insurrection” for inflaming a pro-Trump mob that attacked and briefly occupied the US Capitol on January 6. Trump’s second impeachment trial begins Tuesday, even though he is no longer in office.
So why would lawmakers bother with impeachment? One answer is that removal is not the only sanction available if Trump is convicted: The Constitution also permits the Senate to permanently disqualify Trump from holding “any office of honor, trust or profit under the United States.”
If Trump were to seek the presidency again in four years, he could be the prohibitive favorite in a Republican Party primary. A December Gallup poll shows that Trump has an 87 percent approval rating among Republicans, even though he is quite unpopular with the nation as a whole. Another December poll by Quinnipiac University found that 77 percent of Republicans believe the lie that Trump lost to Biden because of widespread voter fraud — a lie that Trump repeated even as his supporters wreaked havoc in the Capitol in January.
Disqualifying Trump from holding office, in other words, wouldn’t just eliminate the risk that America’s most prominent adversary of democracy would occupy the White House once again. It would also make way for other ambitious Republicans who hope to become president someday.
How disqualification works
Though Congress has the power to remove public officials via impeachment, this power is rarely used. Including Trump, who was impeached in late 2019 for pressuring Ukraine to intervene in the 2020 election, only 20 officials (and only three presidents) have been impeached by the House in all of American history. And, of these 20 impeached individuals, only 11 were either convicted by the Senate or resigned their office after they were impeached.
The term “impeachment” refers to the House’s decision to charge a public official with “high crimes and misdemeanors,” the phrase the Constitution uses to describe offenses warranting removal of a high official. The House may impeach such an official by a simple majority vote.
After such a vote, the matter moves to the Senate, which will conduct a trial and decide whether to convict the impeached official (if the president is impeached, the Chief Justice of the United States shall preside over this trial). Convicting someone who is impeached requires a two-thirds majority vote in the Senate.
If the impeached official is convicted, the Senate then must decide what sanction to impose upon that official. Under the Constitution, “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.” So the Senate effectively must decide whether merely removing the official from office is an appropriate sanction, or whether permanent disqualification is warranted.
Although the Congress may only remove and disqualify a public official, federal prosecutors may still bring criminal charges against that official in federal court.
In all of American history, only three individuals — former federal judges West Humphreys, Robert Archibald, and Thomas Porteous — have been permanently barred from holding future office.
The Constitution is silent on whether, after an official has already been impeached and removed from office, imposing the additional sanction of disqualification requires a supermajority vote. In the past, however, the Senate determined that a simple majority vote is sufficient for disqualification. Judge Archibald was disqualified by a vote of 39-35 after he was removed from office.
To be clear, such a simple majority vote may only take place after the Senate has already voted to convict an impeached official. Two-thirds of the Senate must first agree to remove someone from office before that official can be disqualified — a simple majority cannot, acting on its own, disqualify an official from holding future office.
The Supreme Court has not ruled on whether simple majority vote is sufficient to disqualify someone from public office after they’ve already been removed. Humphreys and Porteous were both disqualified in supermajority votes, and Archibald never brought a case before the Court that could have allowed the justices to rule on how many votes are required to disqualify a public official.
Nevertheless, there is a strong constitutional argument that the Senate should be allowed to disqualify an individual by a simple majority vote, after that individual has already been convicted by a two-thirds majority.
In criminal trials, defendants typically enjoy far fewer procedural protections during the sentencing phase of their trial than they do in the phase that determines their guilt or innocence. In trials not involving a possible death sentence, a defendant must be convicted by a jury, but the sentence can be handed down by a single judge.
A similar logic could be applied to impeachment trials. Before a public official is convicted by the Senate, they enjoy heightened procedural protections and must be found guilty by a supermajority vote. After they are convicted, however, they are stripped of those protections and their sentence may be determined by a simple majority of the Senate.
In any event, overcoming the hurdle of convicting Trump will be difficult. If all 50 Senate Democrats hold together, they still need to convince at least 17 Republicans to convict Trump. And the overwhelming majority of Republicans already voted to declare Trump’s second impeachment trial unconstitutional — so that’s not a great sign for anyone hoping that Trump might be convicted.
The question for Republican senators, however, is whether they want to risk having Trump as their standard-bearer in 2024.