Editor’s Note: David Durenberger was a US Senator from Minnesota from 1978-1995. Larry Pressler was a US Senator from South Dakota from 1979-1997. Gordon Humphrey was a US Senator from New Hampshire from 1978-1990. All three served as Republicans. The views expressed here are those of the authors. View more opinion on CNN.
Former president Donald Trump incited an insurrection and has faced little consequence for it so far. As such, senators must take on their constitutional duty to sit as impartial jurors in the impeachment trial, regardless of any lingering concerns – unfounded we believe – that the process is unconstitutional.
When the House of Representatives voted to impeach then-President Trump on January 13, by a bipartisan vote of 232 to 197, those voting to impeach knew it was unlikely that the Senate would be able to hold a full trial before Trump left office. However, both Democratic and Republican members of Congress understood that no president, regardless of political party, should be let off the hook for inciting an insurrection against a coequal branch of government, especially as it was convening to conduct its constitutional duty in certifying the Electoral College count.
These members recognized that both Trump’s urgings to protesters to “fight like hell” before the Capitol was breached, and his lack of meaningful action during the six hours it took to restore order, were unacceptable – and that he needed to be held accountable. House members rose to the occasion, honoring their oath and respecting the process despite the unfavorable calendar. It’s time for the Senate to do the same.
The consequence of not holding a trial because a president has left office would send the message that any official in government could escape accountability simply by committing impeachable offenses just before the end of their term.
An impeachment trial isn’t just about removal from office – which in this case we acknowledge is moot. Rather, the trial offers Congress the ability to hold a president accountable for his actions and can lead to a vote on the disqualification from holding federal office again. To put it simply, the impeachment process could signal that officials cannot repeat Trump’s misdeeds in the future without facing serious consequences.
This is why, as former Republican senators, we were disappointed and worried by the 45 Republican senators who voted in favor of a point of order challenging the trial’s constitutionality after being sworn in to “do impartial justice.” Congress should not shirk its duty to act as a check on abuse of power from the executive branch.
Thankfully, five Republicans joined with Democrats in defeating the motion and affirming the trial’s constitutionally. The Senate has now spoken – all senators must put aside any preconceived and mistaken notions on the legality of the trial, and evaluate all testimony and evidence before rendering a final decision on former President Trump’s guilt.
To be clear, we believe the Constitution clearly allows the Senate to engage in an impeachment trial after an official has left office.
And we aren’t alone. The nonpartisan Congressional Research Service writes that, “most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” Moreover, more than 150 legal scholars across the political spectrum recently signed an open letter concluding, “that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.” The letter included the co-founder and other members of the conservative legal group, the Federalist Society.
Plus, there is actual precedent for the Senate to conduct impeachment trials after officials have left office. In 1797, former Sen. William Blount was unanimously impeached by the House on charges of treason, and the Senate went ahead and conducted an impeachment trial even after he was expelled. The Senate conducted another impeachment trial for former Secretary of War William Belknap, who in 1876 faced bribery charges, after he resigned. Although the Senate eventually acquitted both of these individuals, senators still upheld their oaths and heard the cases presented to them.
The legal consensus and historical precedent make it hard to believe that 45 Republican senators are truly concerned about whether the Constitution allows for this trial. Rather, it appears some are hiding behind a procedural question in order to avoid a vote that would upset Trump’s most loyal supporters.
But now is not the time to worry about electoral consequences. The Republican Party cannot rely on one man for its future; instead Republicans must stick to their principles and vote their conscience.
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Other than declaring war, the decision to convict the former president and bar him from future office is likely the biggest decision a senator faces. So we urge the Senate to set political concerns aside and to perform its constitutional duty, follow Senate precedent, and conduct a fair trial.
As impartial jurors, senators should want to hear all the testimony and examine all the evidence before casting their votes to either convict or acquit. And they should not acquit simply because Trump is no longer in office or they fundamentally believe the trial is unconstitutional. We cannot let former President Trump escape accountability on a technicality.