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Questions have arisen over the constitutionality of former President Trump’s trial in the Senate, and it is a central part of the Trump defense team’s argument. 

Trump’s defense attorney Michael van der Veen claimed during today’s proceedings that the Democrats’ article of impeachment is an “unjust and blatantly unconstitutional act of political vengeance.”

At the start of the impeachment trial on Tuesday, the Senate voted that the second impeachment trial of Trump is constitutional. The 56 to 44 vote, however, showed why there’s little path for the House managers to obtain the two-thirds majority needed for conviction, as all but six Republican senators voted for a second time that the trial was unconstitutional because Trump is no longer president.

Trump is the first president to be impeached twice and is the first ex-president to have his impeachment tried in the Senate while out of office. 

Following Trump’s most recent impeachment in the House, former US Circuit Court Judge J. Michael Luttig weighed in on some constitutional questions, writing on Jan. 12 in the Washington Post that “Congress loses its constitutional authority to continue impeachment proceedings against” Trump after he leaves office because “the Senate’s only power under the Constitution is to convict — or not — an incumbent President.”

Senate Democrat Richard Blumenthal called arguments questioning the constitutionality “bogus,” saying that “[T]here’s nothing in the Constitution that prevents any federal officer from being tried after they’re out of office.”

Facts First: Given the limited language in the Constitution on impeachment, legal experts disagree about whether the Senate can convict a former president. However, Democrats, who hold a slim control of the Senate, have gone forward with a trial.

Under the Constitution, the House can impeach a President for “treason, bribery or other high crimes and misdemeanors.” Then the Senate holds a trial and needs a two-thirds majority to convict and remove the President from office. Another vote would be necessary to bar the then ex-President from holding office again, but this vote would require only a simple majority.

The Constitution doesn’t specifically address convicting an ex-President but simply says “The President,” VP and all civil officers “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

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