McConnell’s Acquittal of Trump: Can an Impeached Former President Be Tried in the Senate?

Blog Post | 113 KY. L. J. ONLINE | March 14, 2025

McConnell’s Acquittal of Trump: Can an Impeached Former President Be Tried in the Senate?

By: Will Haydon, Staff Editor, Vol. 113 

One minute, Senate Majority Leader Mitch McConnell was listening as his colleague, Senator James Lankford of Oklahoma, objected to the certification of the 2020 presidential election on the floor of the United States Senate.[1] The next, he was surrounded by his security detail as word spread throughout the chamber of the insurrectionists who had just breached the U.S. Capitol building.[2] McConnell would later recount that there was no question that President Trump’s role in the January 6th attack on the Capitol was an impeachable offense.[3] It might seem strange, then, why a man who regarded Trump as “[n]ot very smart, irascible, nasty,”[4] as well as “narcissistic”[5] and “detached from reality,”[6] would ultimately vote to acquit the then-former president after his second impeachment trial.[7]

Though McConnell publicly stressed that Trump was “practically and morally responsible for provoking the events of the day,”[8] he was not convinced that the Senate could convict a president once they had left office.[9] Indeed, he was one of forty-five Senate Republicans who supported Senator Rand Paul’s failed point of order challenging the constitutionality of “impeach[ing]” a former president before Trump’s trial even began.[10] According to public statements given by thirty-eight of the forty-three Republican senators who ultimately voted to acquit Trump, over half believed that the Senate lacked jurisdiction to try a former president.[11] Only sixteen cited merit-based reasons as justification for their votes.[12] Given the profound consequences of Trump’s second acquittal, it behooves constitutional scholars and the American public alike to take a closer look at whether an impeached former president may still be tried in the Senate.

The best place to begin any constitutional analysis is the text itself. Article I, Section 3, Clause 6 of the Constitution makes clear that “[t]he Senate shall have the sole [p]ower to try all [i]mpeachments.”[13] We need not take up the question of whether a former president may be impeached, because Trump was still president at the time of his impeachment by the House of Representatives on January 13, 2021. Just as the Senate has the sole power to try all impeachments, the House enjoys the sole power of impeachment itself.[14] It is important not to confuse these two distinct roles of our bicameral legislature.

There exists no implied or express limitation within the constitution that requires an impeached president, vice president, or civil officer of the United States to be in office at the time of the Senate trial’s commencement.[15] One historical example that may prove informative is the 1926 impeachment of Judge George English.[16] After Judge English’s impeachment by the House for judicial misconduct, he stepped down from the bench before his Senate trial began.[17] As a result, the House managers recommended that the Senate trial not move forward, but emphasized that the Senate still had jurisdiction over the case.[18] Per the managers’ recommendation, the Senate overwhelmingly voted to dismiss the case, but every senator who spoke agreed that the Senate retained jurisdiction.[19]

Two penalties can result from impeachment and conviction: (1) “removal from office,” and (2) “disqualification to hold and enjoy any [o]ffice of honor, [t]rust or [p]rofit under the United States.”[20] Officers who are impeached and convicted “must be removed, but any person convicted on impeachment may be disqualified.”[21] If a president is impeached while in office but vacates that office before the Senate can conduct its impeachment trial, the removal penalty is necessarily moot, but the potential for disqualification remains. Nowhere in the Constitution does it suggest that the disqualification penalty is supplemental to or dependent upon the removal penalty. A president’s ineligibility for removal resulting from impeachment and conviction should not allow him to escape jurisdiction altogether.[22] Moreover, as former Tenth Circuit Court of Appeals Judge Michael McConnell has noted, “[t]here is no textual or logical reason to assume that only a person who can be removed can be tried and convicted.”[23] Certainly the Senate may decide to dismiss charges against an impeached president, vice president, or civil officer of the United States upon that individual’s resignation or the expiration of their term, but that dismissal need not be for want of jurisdiction.

The disqualification penalty was not an afterthought for the framers, but rather an important safety mechanism by which to protect the nation from “‘demagogue[s]’—who might gain power and overthrow republican government by appeals to the passions of the masses.”[24] Senator McConnell knew of the penalty’s significance, but was ultimately persuaded by the politically convenient, if erroneous,  argument that the Senate lacked power to convict a former president.[25] Speaking moments after he voted to acquit Trump for his role in the January 6th attack, McConnell reported to the nation that the former president “was still liable for everything he did” while in office.[26] He said that Trump “didn’t get away with anything yet—yet.”[27]

[1] Michael Tackett, The Price of Power: How Mitch McConnell Mastered the Senate, Changed America, and Lost His Party 298 (2024).

[2] Id.

[3] Id. at 306.

[4] Id. at 271.

[5] Id. at 304.

[6] Id. at 302.

[7] Id. at 309.

[8] Id. at 308.

[9] See id. at 306-07.

[10] Lawrence Smith, Sen. Rand Paul Says Effort to Impeach Trump Is Unconstitutional and Could Lead To ‘Mischief’, WDRB (Jan. 28, 2021), https://www.wdrb.com/news/sen-rand-paul-says-effort-to-impeach-trump-is-unconstitutional-and-could-lead-to-mischief/article_7e185692-61aa-11eb-af9a-33eb3418f9b8.html.

[11] Ryan Goodman & Josh Asabor, In Their Own Words: The 43 Republicans’ Explanations of Their Votes Not to Convict Trump in Impeachment Trial, Just Security (Feb. 15, 2021), https://www.justsecurity.org/74725/in-their-own-words-the-43-republicans-explanations-of-their-votes-not-to-convict-trump-in-impeachment-trial/.

[12] Id.

[13] U.S. Const. art. I, § 3, cl. 6.

[14] Id.; U.S. Const. art. I, § 2, cl. 5.

[15] Michael W. McConnell, Impeachment and Trial After Officials Leave Office, 87 Mo. L. Rev. 793, 797 (2022).

[16] Id. at 800.

[17] Id.

[18] Id. at 800-01.

[19] Id. at 801.

[20] U.S. Const. art. I, § 3, cl. 7.

[21] McConnell, supra note 15, at 798.

[22] Frank O. Bowman, The Constitutionality of Trying a Former President Impeached While in Office, LAWFARE (Feb. 3, 2021, 12:42 PM), https://www.lawfaremedia.org/article/constitutionality-trying-former-president-impeached-while-office.

[23] McConnell, supra note 15, at 798.

[24] Bowman, supra note 22.

[25] Tackett, supra note 1, at 306, 309.

[26] READ: McConnell Speech After Trump’s Impeachment Trial Acquittal, U.S. News & World Rep. (Feb. 14, 2021, 11:36 AM), https://www.usnews.com/news/politics/articles/2021-02-14/read-mcconnell-speech-after-trumps-impeachment-trial-acquittal.

[27] Id.