An impeachment trial in the U.S. Senate is upon us, and constitutional questions arise.

One is whether the chief justice must preside when a former president is being tried.

Another is whether an impeachment trial may take place after the person being tried has left office.

To answer both questions, let’s see what the U.S. Constitution says about impeachment and impeachment trials:

¯ Under Article I, Section 2, Clause 5, “The House of Representatives … shall have the sole Power of Impeachment.”

¯ Under Article I, Section 3, Clause 6, “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.”

¯ Under Article 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.”

¯ Under Article I, Section 3, Clause 7, “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.”

Now to the first question: Must the chief justice preside when a former president is being tried?

The answer is in the second bullet.

The Constitution requires the chief justice to preside only when the president – not a former president – is being tried.

This principle of law applies regardless of which former president is being tried, or what a former president is accused of doing.

Now to the second question: May an impeachment trial take place after the person being tried has left office?

Those asserting the answer is “yes” must prove government has such power.

It’s not up to anyone else to prove the negative.

Why? Because in the United States, those seeking to put someone on trial must prove government has the power to do so.

The American people deserve to hear the proof.

Let’s hear it.

We’re listening.

Those asserting an impeachment trial may take place after the person being tried has left office need to address the third and fourth bullets.

Upon conviction, the person being tried “shall be removed from Office.”

May the Senate do more? Yes. It may also disqualify a person convicted from “hold(ing) and enjoy(ing) any Office of honor, Trust, or Profit under the United States.” However, such disqualification need not, and doesn’t automatically, follow an impeachment conviction.

Regardless of whether disqualification occurs, the Constitution requires that a person convicted “be removed from Office.”

These provisions indicate the Constitution doesn’t contemplate impeachment, an impeachment trial, or an impeachment conviction of anyone no longer in office, regardless of who the person is, which office the person held, or what the person is accused of doing.

An underlying principle of law is simple: Government may do only what the Constitution permits.

As this columnist wrote in 2016, “unlike in America’s mother country, where government power flows from the Crown, the framers established government with the consent of the governed, and government has only those powers that the governed surrendered to it in the first place.” Thus, we “start with the premise that government may do what the Constitution permits and not with the premise that government may do everything except what the Constitution forbids.”

Besides, those now asserting an impeachment trial may take place after the person being tried has left office may one day regret the precedent they establish.

A similarly unconstitutional impeachment trial would be no more justified in the future than now.

Yet it’s in no way a threat to recall that what goes around can come around.

Dr. Randy Elf’s 2016 Regent University Law Review article is at https://works.bepress.com/elf/18 and is the subject of a 2020 presentation to Advocates for Balance at Chautauqua at https://works.bepress.com/elf/21.

COPYRIGHT ç 2021 BY RANDY ELF