In the wake of the blitzkrieg second impeachment of President Trump, Congress is now faced with the question of how to move forward. The Senate is in recess until January 19, meaning that the earliest possible time it could receive the Article of Impeachment from the House would be 1:00 p.m. on January 20. As Joe Biden takes the oath of office at noon on that date, if Donald Trump is to be tried by the Senate, he will inevitably appear as private citizen Trump.

If that seems illogical, there is good reason for the confusion, and, indeed, one of the major questions facing the country at this moment is whether the Senate can constitutionally try an impeachment on a government officer who is no longer in office. Although current talk in Washington suggests that a trial will take place, the matter is far from simple.

Some legal scholars have put forward an argument based on the text of the Constitution:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States…

The conjunction employed between “removal from office” and “disqualification” is and, implying that there must be removal from office as a necessary precondition for disqualification. If that were not the case, the Framers would have written or.

Given the terse wording of the Constitution, however, much of its interpretation depends on legal precedent. Impeachment has been used rarely over the 244 years of our country’s history; precedents are therefore few and far between. There are basically two relevant to the present case: Secretary of War William Belknap and President Richard Nixon.

Belknap, who served under President Grant from 1869 to 1876, was involved in a kickback scandal involving trading posts on the western frontier. He resigned his office literally minutes before the committee investigating him voted for impeachment. Proceeding with the impeachment even in the face of Belknap’s resignation was seen as a means of preventing him from evading prosecution.

A little more than a month after Belknap’s resignation, the matter was forwarded to the Senate for trial. Several weeks were spent debating the same question the country faces today: did the Senate have jurisdiction? Belknap’s attorneys contended that:

All the reasons upon which the proceeding was supposed to be necessary were applicable only to a man who wielded at the moment the power of the Government, when only it was necessary to put in motion the great power of the people, as organized in the House of Representatives, to bring him to justice. It is a shocking abuse of power to direct so overwhelming a force against a private man.

In rebuttal, the impeachment managers maintained that:

the power of the Senate of the United States over all grades of public official national wrongdoers…to interpose by its judgment a perpetual barrier against the return to power of great political offenders, does not depend upon the consent of the culprit, does not depend upon the accidental circumstance that the evidence of the crime is not discovered until after the official term has expired or toward the close of that term, but is a perpetual power, hanging over the guilty officer during his whole subsequent life, restricted in its exercise only by the discretion of the Senate itself…We claim that[,] the House of Representatives having obtained jurisdiction of the subject-matter by instituting these proceedings against the defendant, he could no more defeat them by resigning midway than he could defeat the Constitution itself.

While the Senate passed the motion to try the case, absent a two-thirds majority, Belknap was acquitted. Of the 25 senators who voted to acquit, 23 of them did so because they felt the Senate had no jurisdiction in the case. Thus the Belknap impeachment shows that someone no longer in office may be impeached and tried. It also shows that the impeachment was ineffective because of questions surrounding the validity of such an action.

As for Nixon, following investigation into his role in the cover-up of the Watergate scandal, and facing certain impeachment, he, like Belknap, beat Congress to the punch by resigning on August 8, 1974. In the wake of his resignation, and ignoring the Belknap precedent, the House tactfully voted to “accept” the Judiciary Committee’s report on the Watergate affair on August 21 and left the matter to rest.

Nixon was pardoned by his successor, President Gerald Ford, on September 8, although one needs to point out that the Pardon Clause expressly limits the presidential pardon power from extending to cases of impeachment. Thus the pardon would not have worked to prevent Congress from impeaching Nixon at a later date. But, just as Congress chose to proceed against Belknap, it chose not to proceed against Nixon.

As opposed to Belknap, the Nixon case shows that impeachment is not required after the officer leaves office. Whether Congress’ decision to desist was based on questions of jurisdiction and constitutionality or made for the perceived good of a bitterly angry country, or some combination of the two, cannot be known.

A critical difference between the Belknap and Nixon cases on the one hand and the Trump case on the other is that both Belknap and Nixon resigned their offices. The clock is simply running out on Trump. As a result, the argument advanced against Belknap – that he shouldn’t be allowed to escape prosecution by resigning – does not obtain in Trump’s case.

The House has yet to vote on sending the Article of Impeachment to the Senate and the outcome of these unsettled constitutional questions is far from clear. Which of the two precedents – Belknap or Nixon – Congress chooses to follow remains to be seen. Both houses will, one hopes, vote in the country’s best interests.