Legal Implications of Trump’s Absence at Biden’s Swearing In

Chukwuemeka Eze


The United States held its presidential election on Tuesday, 3rd November, 2020. The Democratic Party ticket of former Vice President Joe Biden and the immediate past U.S. Senator from California, Kamala Harris; the duo defeated the Republican Party ticket of then President Donald Trump and Vice President, Mike Pence. With the defeat, Trump became the first U.S. president since George H. W. Bush in 1992 and the eleventh incumbent President in the country’s history, to lose a bid for a second term. Not only that Democrat, Joe Biden, passed the necessary 270 electoral votes threshold to become the 46th U.S. President, he also scored more votes (77 million) than any other presidential candidate in U.S. history.

Biden’s Swearing-In and Trump’s Absence

The inauguration of Joe Biden as the 46th president of the United States took place on January 20, 2021, marking the commencement of the four-year term of Joe Biden as President and Kamala Harris as Vice President. In one of his first official actions as President, Joe Biden has issued about seventeen executive orders reversing many of the controversial policies of his immediate predecessor. The orders were diverse in their impact, ranging from a mask mandate on all federal property, to revisions of directives introduced by former President Donald Trump, including halting the construction of a wall along the U.S.-Mexico border, Biden rejoining the Paris Climate Pact, and resumption of her membership of the WHO, among others.

However, President Joe Biden’s Inauguration looked much different from those in years past, particularly when it came to who will not be in attendance. Presidential inaugurations typically, are attended by hundreds of dignitaries; including former Presidents, Supreme Court Justices and members of Congress. Those who were not there for the swearing in of the 46th President included two of Biden’s predecessors: Presidents Donald Trump and Jimmy Carter, though they did not attend for different reasons.

On the part of President Donald Trump, he had posted on Twitter, before Twitter terminated the operation of his account, that he wouldn’t attend the swearing in ceremony of his successor. Trump’s decision to skip Biden’s swearing-in ceremony, came after weeks of him refusing to acknowledge that Biden had defeated him in the November 3 election. By skipping Biden’s inauguration, Trump had broken from White House tradition that was broken in the 19th Century by former President Martin Van Buren, after he lost to Henry Harrison. Prior to the act of President Martin Van Buren who was in office between 1837 and 1841, some Presidents had allowed political animosities to triumph over a symbolic demonstration of national unity.

Trump’s absence will be the fourth example of a President who did not attend his successor’s swearing-in amid a polarised political climate, or after a contested presidential election, thereby following the footsteps of Presidents John Adams, the second U.S. President; John Quincy Adams, the sixth President; and Andrew Johnson, the 17th President and the first to be impeached. All three were also one-term Presidents.

Trump’s absence at the Inauguration may violate recent social norms, but it does not violate the U.S. Constitution. The Constitution doesn’t require an outgoing President to attend an incoming President’s Inauguration. But, the presence of the outgoing President has come to be seen as important, because of what it represents. For example, Woodrow Wilson, still in poor health after a debilitating stroke towards the end of his presidency, accompanied his successor Warren G. Harding on a ride to the U.S. Capitol, even though he was not well enough to attend the outdoor inauguration ceremony. The image of the past and present Presidents at the U.S. Capitol, is seen as an image of the continuity of government, and a graceful and peaceful transfer of power. All of these makes the snub of an incumbent not attending his successor’s inauguration, seem queer. Of the 10 previous Presidents who received their party’s nomination and lost re-election, the last eight have attended the inauguration of their successors. John Adams in 1801 and John Quincy Adams in 1829, refused to do so, hence allowing political animosities to triumph over a symbolic demonstration of national unity, just like President Trump has done.

Can Trump be Impeached despite his Exit as President?

The raging question by some legal scholars include: Can the Senate hold a trial for an ex-President?

It’s the debate that has been raging in legal and constitutional circles for a week: Does the Senate have any business deploying its most potent punishment against Trump as a private citizen?

One camp, personified by Senator Tom Cotton (R-Ark.), says no. According to him, “The Founders designed the impeachment process as a way to remove office holders from public office, and not an inquest against private citizens.” In other words, you can’t remove from office, someone who has already relinquished the office of the President.

The other view, given voice in the recent by Steve Vladeck, a University of Texas Law Professor, posits that of course, a former President can be convicted. The Constitution doesn’t just provide for removal, but also for the Senate to bar that former President from ever holding federal office again. In Vladeck’s view, how could the framers have designed a “disqualification” system that could be defeated, if the target simply resigned minutes before the process was complete? The bottom line is that Congress, by deciding to hold an impeachment trial after Trump’s exit, is daring the courts to wade into a territory that Judges typically avoid. The Constitution gives the House and Senate the “sole power” to handle matters of impeachment. Judges have frequently cited this, to determine that they have no role in telling lawmakers how to wield their own constitutional power.

Should impeachment prevail, the consequences of impeachment according to the 1958, Former Presidents Act: he would be denied his $200,000 annual pension, a $1 million annual travel stipend, and extra funding for his future staff. However, by an order signed by his predecessor Barack Obama, President Trump will still be guaranteed his lifelong secret service detail.

Constitutionally, the practicability of the Senate to act on impeachment of President Trump is narrow, if not fruitless. The reason being that, it’s a question of concern whether the inquest of the Senate extends to when the person sought to be impeached had left office. The likely consequences on President Trump if the Senate trial will take place after his exit from office, might be that the Senate may vote on banning him from ever running for public office again if found guilty of insurrection or rebellion against the Constitution, and not for impeachment; this is by virtue of Section 3 of the 14th amendment which provides as follows:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But, Congress may by a vote of two-thirds of each House, remove such disability”.

In an opinion piece published in The Washington Post, Yale Law School Professor, Bruce Ackerman, and Indiana University Law Professor, Gerard Magliocca, argued that members of Congress have another, perhaps easier, path to barring Trump from office. They pointed to Section 3 of the 14th Amendment, aimed at preventing people from holding federal office if they are deemed to have engaged in insurrection or rebellion against the Constitution. The Professors write that, if a majority vote of both houses agree that Trump engaged in an act of insurrection or rebellion, then he would be barred from running for the White House again. Only a two-thirds vote of each House of Congress in the future could undo that result.

There is precedent for the Senate preventing public officials from seeking office again after impeachment. Judges Robert Archbald (in 1913) and West H. Humphreys (in 1862) were both banned from seeking office after impeachment, although this fate has never befallen a President before.

The Siege on Capitol Hill

The storming of the United States Capitol by a mob of pro-Trump supporters, was a riot and violent attack against the United States Congress at the United States Capitol on January 6, 2021, in an attempt to overturn his defeat in the 2020 presidential election. The riot led to the evacuation and lockdown of the Capitol, and five deaths.

As a result of the invasion of the Capitol, posers have been raised and answers have been provided.

• Will the rioters who entered the US Capitol be prosecuted?

The top federal prosecutor for the District of Columbia, Michael Sherwin, said that “all options are on the table for charging members of the violent pro-Trump mob that stormed the US Capitol, including sedition, a rarely used charge”. Sherwin said that prosecutors planned to file 15 federal cases by the end of the day for crimes, including unauthorised access and theft of property.

• Will Trump face consequences?

The consequences have so far, been mostly political. In the immediate aftermath, he lost support of several members of his own administration. Transportation Secretary, Elaine Chao, resigned over the incident, followed by Secretary of Education, Betsy DeVos. Several other aides stepped down. Social media companies also reacted to the events. Facebook barred Trump from posting on that platform and on Instagram, which it owns. Also, Twitter locked Trump’s account permanently. Several politicians from both sides of the aisle, called for Trump’s swift removal from office. In a nutshell, the siege on Capitol Hill had subjected President Trump to another impeachment saga from the House of Representatives. The Senate could not convene for his trial before he exited.

Appointment of Three Nigerians by President Joseph Biden

The United States President, Joe Biden’s appointment of three Nigerians into his cabinet is a thing of pride, not just for Nigeria, but for the entire African continent. Biden first appointed 39-year-old Adewale Adeyemo, who was the first President of the Obama Foundation, as United States Deputy Secretary of the Treasury. Next, Biden appointed 26-year-old Miss Osaremen Okolo, who hails from Ewohimi in Esan South East Local Council of Edo State, as his Covid-19 Policy Advisor. Miss Okolo is a graduate of Harvard University, and a former Senior Health Policy Advisor in the US House of Representatives. The latest Nigerian young talent Biden has appointed, is Funmi Olorunnipa Badejo whom he appointed White House Counsel. Badejo, a Lawyer and an alumnus of Berkeley Law College in the US, has served as a counsel for policy to the Assistant Attorney-General in the Civil Division of the US Department of Justice, Ethics Counsel at the White House Counsel’s Office. She was also Attorney Advisor at the Administrative Conference of the United States during the Obama-Biden administration. The appointment of Nigerians by President Joe Biden and Biden’s telephone call to a Nigerian family based in Illinois, U.S.A. which went viral on social media on 21st January, 2021, is a indication that Nigerians and Africans at large will receive favourable treatment in policies of Joe Biden presidency.


The eventual transfer of power to President Joe Biden, despite Trump’s refusal to cooperate, demonstrates the resilience of America’s democratic institutions. The siege on the Capitol shows the level of desperation the supporters of a leader could evince, in order to change the course of history. Twitter’s clampdown’s on Trump’s account teaches us that when the interest of an office holder conflicts with that of the States, individuals and corporate citizens should defer to the superior interest of the State. On the matter of impeachment, Trump has made history as a U.S. President impeached twice by the House of Representatives within his one term of four years.

Biden’s appointment of three Nigerians into his cabinet is evidence that, merit has no racial colour. It is indeed, a new dawn for Nigerians and Africans.

Chukwuemeka Eze, Lecturer of Diplomatic and Consular Relations at the Postgraduate level, Faculty of Law, Nasarawa State University, Keffi; Chairman of the Tax Appeal Tribunal, South East Zone

Related Articles