Sen. Tom Cotton and former judge of 4th Circuit Court of Appeals say Senate cannot constitutionally put Trump on trial

Tom Cotton on Wednesday night announced he was not in favor of impeaching Trump

Democratic lawmakers are making a strange, headlong dash to impeach President Trump with only a week left in his term, but two GOP senators and a judge say it’s not going to happen, according to

Arkansas’ Sen. Tom Cotton has said Donald Trump’s impeachment would be unconstitutional if the trial happens after he leaves office. Senate Majority Leader Mitch McConnell has in turn rejected a plan to reconvene the Senate in an emergency session to hold a trial over a House impeachment article against Trump.

Additionally, J. Michael Luttig, a judge for the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006, argued in a Washington Post op-ed on Jan. 12 that a Senate trial after Trump is out of office would be unconstitutional.

Cotton, a conservative and possible contender for the White House in 2024, issued his statement on Jan. 13, after the Democrat-controlled House voted to impeach Trump for the second time.

“The Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” he said.

McConnell, the Senate majority leader, said earlier on Jan. 13 that the Senate trial of the president will not begin until after the Senate returns from a recess scheduled to end on January 19. That means the soonest the trial could begin would be 1 p.m. on Jan. 20 — “President” Joe Biden’s inauguration day.

McConnell press secretary Doug Andres on Jan. 13 confirmed a report that the Kentucky Republican would not approve such a move. Without the emergency session, the Senate is due back in session on Jan. 19, so McConnell’s decision all but kills a Democrat-led effort to oust Trump from office before his term is up.

Democrats have proposed holding the trial over Trump’s impeachment well-into Biden’s presidency, but Michael Luttig, a former judge of the U.S. Court of Appeals for the 4th Circuit, dismissed the idea on Jan. 12, stating that impeaching and removing a president already out of office is “unconstitutional.”


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