G/O Media may get a commission
Trump’s disqualification could come from a simple Senate majority, in theory
A president’s removal from office requires a two-thirds Senate majority vote in favor of conviction. If that’s attained, there’d have to be yet another vote on disqualification. Luckily for Democrats, there are legal experts who assert that disqualification can be levied through a simple majority vote.
Only three officials have ever been disqualified from holding office after impeachment conviction; all of them were federal judges. Two of them, West Humphreys and Thomas Porteous, were convicted and barred after the Senate conducted a two-thirds, supermajority vote.
Of course, if this were to apply to the president, many legal experts say the disqualification could only come after a two-thirds majority in the Senate votes to convict for high crimes and misdemeanors. And given the tight 50-50 split among Republicans and Democrats in the chamber currently, it isn’t clear that Trump would even be dealt such a punishment.
Still, there’s no uniform agreement among experts on how disqualification might work. As a recent explainer from Reuters notes:
Support Our News Campaign
Shop our Store
Click Here To Shop
Paul Campos, a professor of constitutional law at the University of Colorado, said he believed a vote to disqualify Trump can be held even if there are not enough votes for conviction. The U.S. Supreme Court has made clear that the Senate has wide latitude to determine how it conducts a trial, he said.
As Vox’s Ian Millhiser notes, the Supreme Court hasn’t ruled on whether the simple majority vote applies to disqualification if the convicted party has already been removed from office. But there’s an alluring argument to be taken from the lower criminal courts that may apply.
In this sense, the Senate could fulfill the role that a judge might in a smaller criminal trial. As Millhister writes:
In criminal trials, defendants typically enjoy far fewer procedural protections during the sentencing phase of their trial than they do in the phase that determines their guilt or innocence. In trials not involving a possible death sentence, a defendant must be convicted by a jury, but the sentence can be handed down by a single judge.
A similar logic could be applied to impeachment trials. Before a public official is convicted by the Senate, they enjoy heightened procedural protections and must be found guilty by a supermajority vote. After they are convicted, however, they are stripped of those protections and their sentence may be determined by a simple majority of the Senate.
Absent an interpretation advanced by the Supreme Court, this boils down to mere hypotheticals at the moment. Still, the possibility of disqualification remains real for Donald Trump.