In a Washington Post op-ed, former U.S. Court of Appeals judge J. Michael Luttig stabs at the now bipartisan impeachment party's hopes, if, that is, said party intends to pursue, as it were, a posthumous conviction and, more crucially, an office disqualification of Trump. Writes Luttig:
"The plain text of the Constitution’s several Impeachment Clauses confirms [the] limit on Congress’ impeachment power. For example, Article II, Section 4 of the Constitution reads, 'The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.' In the same constitutional vein, Article I, Section 3 provides in relevant part: '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.'"
Luttig concedes that retroactive, "civil officials" impeachment cases "provide some backing for the argument that Congress can conclude that it has the power under the Constitution to impeach a former president." But, and this Luttig omits, those cases were nearly incomprehensively convoluted, and neither resulted in a conviction.
Given the textualism of Justices Gorsuch, Barrett and likeminded others on the Court, the conviction killer would indeed seem to be those three little words, removal from Office. The textualists would merely ask, How can you remove Trump from an office he doesn't hold?
At any rate, Judge Luttig's text is rather anticlimactic: "Only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment [trial] of him." He does, however, add this touch of legal subjectivity: "It is highly unlikely the Supreme Court would yield to Congress’s view."