On January 6, a pro-Trump mob attempted a coup (open with a new tab) as Congress approved the election of Joe Biden as the next president, and since then many Americans have been calling for Trump's removal from office. With just over a week left in his term, there are several options, including resignation, the 25th Amendment to the Constitution, and an impeachment trial.

As some have pointed out, unless he can force a pardon on interim president Mike Pence shortly afterward, it is unlikely that President Trump will follow Richard Nixon's lead and take the first approach (which, incidentally, is a reference to Nixon's role in the Watergate (Incidentally, this is also how Nixon avoided punishment for his role in Watergate, courtesy of Gerald Ford.) The 25th Amendment to the Constitution, which allows for removal of the president by the vice president and a majority of the cabinet, is also unlikely to be enacted, despite Congress' formal request to Pence and the reportedly deepening rift (opened by a new tab) between Pence and Trump. Thus, impeachment (ICYMI (open in new tab)) appears to be the nation's best hope for holding the president accountable for his actions in inciting the January 6 riots and attempting to subvert a free and fair election.

With only a few days left in the Trump administration, before explaining what impeachment looks like, let's briefly review the presidential impeachment process: first, the House of Representatives puts one or more impeachment proposals to a vote. If upheld by a simple majority, the President is impeached (as President Trump was in December 2019). The articles are then sent to the Senate, which conducts a trial presided over by the Chief Justice of the Supreme Court. After the trial, a two-thirds majority of Senators vote to convict and the President is automatically removed from office (after the first impeachment trial, President Trump was acquitted by the Senate in February 2020). Once convicted, the Senate simply takes a simple majority vote on a second vote, and the president is never again eligible to hold public office.

Now consider what would happen if an impeachment trial were held after President Trump had already been removed from office, and whether it would be constitutionally justified.

House members began drafting an impeachment motion on the day of the riots, or in the case of Rep. Ilhan Omar, during the riots (opens in new tab), and formally announced one article on January 11. The resolution (opens in new tab) charges Trump with "inciting violence against the government of the United States." It points to the president's repeated attempts to instill distrust in the election process, his remarks at a rally near the Capitol on the day of the riots, and his phone call threatening Georgia's secretary of state if he did not "find" enough votes to overturn Georgia's election results.

The House also introduced a resolution calling on Pence to invoke the 25th Amendment to the Constitution. The resolution will be voted on Tuesday, January 12, giving Pence 24 hours to take action to remove Trump from office. If Pence does not do so, the House is expected to convene the following day (opens in new tab) to vote on the impeachment resolution, which is almost certain to pass easily because of the Democratic majority in the House and the overwhelming support for Trump's removal.

From there, it will be up to Speaker Nancy Pelosi to decide when to send the impeachment bill to the Senate for trial. House Speaker Pelosi has indicated that she may wait for impeachment charges so as not to interfere with the implementation of Joe Biden's agenda when he takes office on January 20 (opens in new tab). There is another advantage to waiting to bring this article to trial until after Biden's first 100 days (opens in new tab). This is because by that time, the Democrats will have a last-minute majority in the Senate (opens in new tab), which could pave the way for an easier path to a guilty verdict.

Nevertheless, this is the first time in U.S. history that a presidential impeachment trial has been held after the president has already left office. The only other presidential impeachments have been Andrew Johnson, Bill Clinton, and first-time Trump, all of which took place while each president was still in office and ended in acquittals by the Senate.

While not entirely uncommon in world history, it has only happened once before in the United States: according to NBC News (opens in new tab), in 1876, then Secretary of War William Belknap, just minutes before the House of Representatives was to vote on impeachment over corruption allegations, He submitted his resignation to President Ulysses S. Grant. Despite his last-minute resignation, the House proceeded with the vote, which passed the Senate, where the impeachment trial was held, and Belknap was acquitted.

Impeachment is mentioned several times in the Constitution, but there is no provision for its timing. It states only that the President, Vice President, and all "civil officers" of the United States are subject to impeachment for treason, bribery, and other "felonies and misdemeanors"; that the House of Representatives has the sole power of impeachment; that the Senate has the sole power to try all impeachments; that removal from office and future service in office as a result of impeachment is only prohibited.

Framer was intentionally vague about the timing in order to prevent public officials who committed treason or other impeachable offenses on their last day in office from being acquitted.

Between the Constitution's lack of a timeline for impeachment and Belknap's belated impeachment, many legal scholars have determined that Trump could be tried by the Senate even after he leaves office.

"If impeachment begins in the House, it could last until the Senate trial. I don't think there's a constitutional problem if the Senate moves quickly or slowly," Michael Gerhart, a law professor at the University of North Carolina at Chapel Hill, told NBC News.

"The constitutional case for late impeachment has more advantages and fewer disadvantages than the case against it," said a widely cited 2001 law review article (open in new tab) by Michigan State University law professor Brian C. Kalt. Kalt draws on the constitutions of the states, the writings of the drafters, past examples of "late impeachment" in England, and the fact that the Constitution provides that impeachment is not only removal from office, but can also bar a person from holding public office in the future, suggesting that impeachment is not only immediate punishment for those currently holding public office The argument was based on the fact that.

And finally, President John Quincy Adams also once referred to this topic and expressed his belief that crimes committed by public office holders while in office can be impeached, regardless of how many years later they are discovered. He stated in 1846 (opens in new tab), "I hold that all acts committed during the time I held public office, as long as I have the breath of life in my body, may be subject to impeachment by this House."