Starr, in comments to Fox News on Monday, stated that the upper chamber cannot try a president after leaving office.
“The answer is emphatically not,” Starr said, adding that “the text of the Constitution to me is absolutely clear that judgment in cases of impeachment” refers to the “removal and possible disqualification.” He argued that a “former officer, by definition, cannot be removed.”
Earlier this month, 45 GOP senators voted to reject going ahead with the impeachment trial, scheduled for Feb. 8, in the strongest hint yet that Democrats’ impeachment efforts are doomed to fail. Conviction in the Senate requires 67 votes instead of a simple majority, and it would require 17 Republicans to join the Democrats.
Another argument against the looming trial stipulates that Supreme Court Chief Justice John Roberts should be the presiding officer, who declined to oversee the event. Instead, Democrats in Senate named Sen. Patrick Leahy (D-Vt.), the president pro tempore of the upper chamber, to preside over the trial.
Senate Majority Leader Chuck Schumer (D-N.Y.) last week said the vote to dismiss the trial last week was “deeply irresponsible.”
“Only five Republican senators were willing to take a principled stand against this reckless and ill-advised effort by members of this body who are eager to excuse President Trump’s campaign to overturn the election and apparently to excuse his incitement of the mob that every one of us experienced in this Capitol,” Schumer said on the floor. “I would simply say to all of my colleagues, make no mistake, there will be a trial, and the evidence against the former president will be presented in living color for the nation and every one of us to see once again.”
The House impeached Trump before he left office earlier this month for alleged incitement and insurrection during the Jan. 6 riots at the Capitol. Trump later said he believed his speech to supporters on Jan. 6 was appropriate.
“The Senate is utterly without jurisdiction to try Donald Trump and if they proceed to do so, they will be … running afoul” of the Constitution’s bill of attainder to punish someone “ex-post-facto,” Starr added.
Days ago, Harvard Law professor Alan Dershowitz made similar arguments as Starr.
“It will be unconstitutional, but that probably won’t bother the senators,” Dershowitz told Fox News. “The Constitution is very clear. The subject, the object, the purpose of impeachment is to remove a sitting president. And there are two precedents. One is very obvious. When President Nixon resigned in anticipation of being impeached and removed, there was no effort to impeach him after he left office.” Former President Richard Nixon opted to resign instead of facing the possibility of a Senate trial in the early 1970s.
“It was clear that the Senate had lost jurisdiction at that point,” he said of the Nixon impeachment. “The proponents cite another precedent. In 1876, there was a failed effort, a failed effort to remove the secretary of war. In an initial vote, the Senate voted close, in a close vote, that they did have jurisdiction to try somebody who had resigned.”