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The US Senate has voted 3 times, once in 1876 and twice in 2021, that impeachment and trial of an official who has left office is acceptable.

Despite this, Mitch McConnell voted to acquit Trump in 2021, apparently on the basis of this being unconstitutional.

Mr McConnell reportedly did not believe the Senate was right to pursue a trial, with CNN reporting sources close to the Senate minority leader saying he believed a Senate impeachment trial could not be held for someone who had left office.

Why is the constitutionality of the issue not settled by these votes? And if these votes are insufficient to settle the issue, how can it be resolved and why hasn't this avenue been pursued?

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  • I’m voting to close this question because questions of constitutionality are better dealt with on Law.
    – gormadoc
    Feb 15 at 14:53
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    @gormadoc I asked a question on law SE about SCOTUS' authority to decide the constitutionality of an impeachment as such. Feb 16 at 13:29
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    Your premise is false; McConnell simply used that excuse to avoid voting against Trump for self-preservation, while simultaneously holding press conferences about how criminal Trump was. McConnell was simultaneously dog-whistling to both sides. Welcome to DC; impeachment is not a legal process, it's a number game; like politics. McConnell is about survival, not principle.
    – smci
    Feb 16 at 23:32
  • Don't you think that's broadly because it's such a rare event? Feb 17 at 1:00
  • @RobbieGoodwin it would seem even more important for a rare yet extremely serious event to be well understood.
    – Jontia
    Feb 17 at 6:29
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Why is the constitutionality of the issue not settled by these votes?

Because Senate votes don't determine constitutionality and how the Senate conducts impeachment trials and why it does so in that manner is its own business.

And if these votes are insufficient to settle the issue, how can it be resolved and why hasn't this avenue been pursued?

It can't be resolved, because it's politicians stating opinions as to why they voted the way they did, it's not actually a binding determination of anything.

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    @Barmar There is no constitutional issue. Senators can vote however they want and are not constrained by any precedent. These claims to “unconstitutionality” are simply the Senators opinion and their personal justification for voting to acquit. A majority vote of the Senate that this impeachment was unconstitutional would have no more binding effect than the majority vote that it was constitutional.
    – divibisan
    Feb 14 at 19:34
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    Which reminds me: They also take an oath before the trial that they'll rule impartially. We know how much credence they give to that oath, since most of them had their minds made up before both imprachment trials. It's hard not to become cynical about impeachments.
    – Barmar
    Feb 14 at 19:39
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    @ThisIsNoZaku , the question if it is constitutional could be permanently resolved - Congress could simply make and approve an Amendment that clarifies it.
    – Aganju
    Feb 14 at 20:43
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    Given that the group claiming it's unconstitutional to hold the trial after Trump left office is the same group that delayed the trial until after Trump was out of office, this is clearly a strategy, not an honest opinion. Feb 14 at 22:29
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    @BlueRaja - Danny Pflughoeft I don't follow that comment. If they honestly believed that the constitution only permitted the vote while Trump was in office, then they might be shrewd to delay the vote until Trump left office. Why does that strategy show that they DID NOT, in fact, honestly believe that the constitution only permitted the vote while Trump was in office? A football team running down the clock in order to preserve their lead is not thereby proven to believe that the other team can score after the clock runs down.
    – Chaim
    Feb 15 at 3:16
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First of all, none of the occasions (now three) when an impeachment has been considered by the Senate after the person impeached was no longer in office led to a vote of conviction. In each case, at least some Senators voted against conviction on the ground that the proceedings were not constitutionally authorized. If Trump, or any other official, had been convicted and disqualified after leaving office, that would have established a clearer precedent.

Secondly, because the Senate establishes its own rules of procedure, and no Senate can bind future Senates, which are free to adopt different procedures, and to handle impeachment in different ways.

Thirdly, because of Nixon v. United States, 506 U.S. 224 (1993). In that case Federal judge Nixon (a different person from President Nixon) had been convicted of and imprisoned for perjury, but refused to resign. Nixon was impeached by the House. A Senate committee looked into the matter, and delivered a report to the whole Senate. The Senate then voted to convict Nixon and remove him from office without holding any more formal proceedings or hearing witnesses. Nixon sued, claiming that this was not a "trial by the Senate" and did not meet the constitutional standard for dealing with an impeachment. As the Wikipedia article puts it:

The majority opinion, by Chief Justice William Rehnquist, held that the courts may not review the impeachment and trial of a federal officer because the Constitution reserves that function to a coordinate political branch. ... Justices Byron White, Harry Blackmun, and David Souter concurred, but voiced concern that the Court was foreclosing the area for review. While they found that the Senate had done all that was constitutionally required, they were concerned that the Court should have the power to review cases in which the Senate removed an impeached officer summarily without a hearing, or through some arbitrary process such as "a coin toss."

If the House were to purport to impeach, and the Senate to convict, a person who had never held federal office, Nixon v. United States would, on its face, prevent the courts from interfering. But in such a case of obvious overreach, I suspect that case might be distinguished and the courts might act. No such case has ever arisen, nor seems likely.

But an arguable case of procedure in an impeachment matter cannot be reviewed by the courts without overturning Nixon v. United States, so no court decision can establish the propriety of a Senate trial after the accused is no longer in office.

Note that the opinion by Justice White in the Nixon case (which agreed with the outcome, but not the reasoning of the majority view) incoluded the statement that:

In essence, the majority suggests that the Framers' conferred upon Congress a potential tool of legislative dominance yet at the same time rendered Congress' exercise of that power one of the very few areas of legislative authority immune from any judicial review. ... it is the Court's finding of nonjusticiability that truly upsets the Framers' careful design. In a truly balanced system, impeachments tried by the Senate would serve as a means of controlling the largely unaccountable Judiciary, even as judicial review would ensure that the Senate adhered to a minimal set of procedural standards in conducting impeachment trials.

This seems to confirm that the Nixon case denied any role to the courts in determining the propriety of impeachment proceedings. While that decision stands, the Court is unlikely to rule on what is or is not done in the course of Senate prodeedigns on an impeachment.

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    I agree with @Barmar it looks like a current Senate can't bind a current Senate. If Senators are free to explicitly ignore votes the Senate passes, doesn't this undermine rule of law?
    – Jontia
    Feb 14 at 16:24
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    @Jontia in this case at least it seems unenforceable. Any Senator voting to acquit based on the impeachment being unconstitutional after it had already been voted constitutional could easily hide that fact.
    – Ryan_L
    Feb 14 at 16:30
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    @Jontia A senate vote to proceed on an issue is not a law. Procedural votes are often reversed after negotiations. Technically, the later vote was merely a vote not to convict. The reasons that individual Senators gave for their votes form no part of the actual vote. (And are arguably disingenuous in at least some cases.) Feb 14 at 16:30
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    @Ryan However most did not hide it, they proclaimed it, as that avoid having to condone or condemn Trumps actions. Feb 14 at 16:31
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    Indeed, Mitch McConnell gave an impassioned speech stating that Trump was clearly culpable for everything he was accused of. But nevertheless, he voted to acquit because he didn't think the Senate had the right to convict him, despite what the Senate decided twice during this process.
    – Barmar
    Feb 14 at 16:37
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Short answer: because courts (and the US Supreme Court in particular) rarely rule on hypotheticals, and nobody has ever been successfully impeached while out of office and then challenged that decision. Until that happens, the matter will remain undecided.

Slightly longer, assuming that it had been challenged and ruled constitutional, all that would change is that when some members said they believed it to be unconstitutional, they would have slightly less credibility. Members (and others) can believe that a decision was decided incorrectly. Most famously, Dredd Scott v Sanford, many people at the time and just about everyone today, would say that it was wrong, and AT THE TIME AND UNDER THE LAWS THAT THEN PREVAILED, it was wrongly decided. Having decided that the case was decided incorrectly, they could continue to say and vote however they pleased. All that changes after a challenge and ruling upholding such an impeachment would be that the next person so impeached would have little to no chance on making an appeal. At the moment, an appeal would almost certainly be heard. So, the real effect of such a hypothetical ruling on even more hypocritical future impeachment’s would (a) make such impeachment’s more likely, and (b) make an appeal less likely to be heard.

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    The Supreme Court doesn't just rarely rule on hypotheticals, they have a long standing interpretation of the U.S. Constitution that forbids them, jurisdictionally, from doing so. en.wikipedia.org/wiki/Case_or_Controversy_Clause
    – ohwilleke
    Feb 16 at 16:33
  • I'll note that the lower courts are not quite as strict about this. E.g., a cease-and-desist letter is often sufficient to demonstrate controversy, even if the sender of the C&D letter has not yet involved the courts. en.wikipedia.org/wiki/Declaratory_judgment
    – Brian
    Feb 16 at 18:02
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The constitution isn't a rulebook to cover every single possible scenario. Impeachment as written covers "presidents". But that is narrow in scope and does not represent any potential timelines when it can be used.

There isn't specific text regarding impeaching someone out of office or a former president or when impeachments can be held or when an impeachment is not valid.

So, it can be interpreted as someone sees fit from a political and/or moral prospective. Literally, as words on the page, or more broadly, or somewhere in between.

Broadly, impeachment was taken from the English who regularly did impeach several officials once out of office. Also, English practice suggests an emphasis more on punishment, as disqualification from future office than on removal.

In 1787 there were several convention debates on the matter which suggest a broader scope of impeachment. Keep in mind at that time there were no presidential limits, so the founders wanted to keep the president in check for bad behavior. They also discussed election shenanigans and agreed that impeachment ought to be used for those scenarios as well, whether in office or not. But details were not laid out succinctly in the document itself.

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