Myth that Trump can't be convicted by Senate because he's no longer in office blown up by DC law firm head
Brendan Smialowski / AFP

According to the head of a high-powered law firm based in Washington D.C., Republican protestations that Donald Trump cannot be convicted in his second impeachment trial because he is no longer in office are fundamentally wrong.

With conservative boosters of the president attempting to undercut the proceedings that begin on Tuesday on the floor of the U.S. Senate by attacking the process, Chuck Cooper, the founder and chairman of Cooper & Kirk, laid that argument to rest.

On the pages of the conservative Wall Street Journal, Cooper referred to the impeachment trial of Bill Clinton to make his case.

"During the impeachment of Bill Clinton, his defenders argued that his misconduct was ultimately private and didn't rise to the level of an impeachable offense. In the current impeachment of Donald Trump, that's a hard argument to make with a straight face, since the then-president's offenses, culminating in the siege of the Capitol, were obviously public and political. So his defenders claim instead that it's unconstitutional for the Senate to try him now that he's no longer in office," he wrote.

Noting that 45 Republican senators have already gone on record agreeing with a motion from Sen. Rand Paul (R-KY) that the Senate has no further jurisdiction over the former president, Cooper vehemently disagreed.

With supporters of the president pointing to Article I, Section 4 of the Constitution, which reads: "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," the attorney said that are misinterpreting the details that follow.

"It simply establishes what is known in criminal law as a 'mandatory minimum' punishment: If an incumbent officeholder is convicted by a two-thirds vote of the Senate, he is removed from office as a matter of law," he explained before adding, "If removal were the only punishment that could be imposed, the argument against trying former officers would be compelling. But it isn't. Article I, Section 3 authorizes the Senate to impose an optional punishment on conviction: 'disqualification to hold and enjoy any office of honor, trust, or profit under the United States.'"

Writing, "That punishment can be imposed only on former officers. That is because Article II, Section 4 is self-executing: A convicted officeholder is automatically removed at the moment of conviction," Cooper elaborated, "Thus a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer. Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders."

Cooper, it should be noted, represented John Bolton in Trump's first impeachment trial.

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