President Trump has been impeached again, and this evening, the single article will be delivered to the Senate, where a trial is expected to begin on February 8th. The evidence of what happened is beside the point. President Trump’s speech is on the record, and members themselves donned ventilators, crouched beneath tables, and watched as their chambers were barricaded against a mob. One might argue cause and effect, and one might even downplay the severity of the event since many of the rioters were more interested in social media selfies than sedition, but lives were lost and some of the rioters were searching for Vice President Pence, Speaker Pelosi, and other members of Congress.

Instead of determining what happened, the Senate trial will be consumed by a constitutional question. Does the Senate have the power to try, convict, and remove a President, or any eligible official, after they are out of office?

J. Michael Luttig, a former federal judge, well-respected by conservatives, argues it does not. The text, structure, and history of the Constitution assume removal is the fundamental element of the impeachment power, and when removal is no longer an option, the power is nugatory. While Article 1 allows Congress to bar someone impeached from holding office in the future, that also presumes removal has occurred. Senators Lindsey Graham (R-SC) and Tom Cotton (R-AR) are making this argument publicly and it is gaining steam within the G.O.P.

A group of constitutional scholars, which appears to be bipartisan and includes members of the Federalist Society, disagrees. According to the statement the members issued, impeachment has two possible outcomes–removal from office and barring from future office-holding. While resignation or electoral defeat may make removal moot, these outcomes do not defang the decision to ban future efforts to run. They also cite the case of William Belknap, the Secretary of War, who resigned just before being impeached in 1876. The House went ahead with the impeachment and the Senate determined it had the power to try Belknap even after resignation.

I think the array of scholars has the better argument, but there is more to consider. Congress should retain the power to impeach, remove, and bar, regardless of the duration. The impeachment power was given as a check on the people’s passions, especially in relation to the President. There was an abiding fear, expressed in Federalist 68, the people would be duped by “low intrigue, and the little arts of popularity,” so safeguards were erected–the electoral college to guarantee an indirect mode of election, as well as impeachment and removal for the abuse of power. Barring a president from seeking office in the future is just another weapon in the congressional arsenal. Reading the Constitution to limit Congress in this area would allow the cunning politician to resign on the precipice of conviction only to run in the future.

Congress should also reserve this weapon to protect itself and the people. There are lines no executive should cross. People may disagree on where the brush should touch the canvas, or the color to use, but the bold stroke must be made if we are serious about maintaining separate branches of government. Congress should be equipped to deal with a president of any stripe. There is room for good faith disagreements over how the Constitution should be understood, but weakening Congress may have grave consequences. The radical expansion of presidential power over the last century has left Congress in sometimes self-sewn tatters. Dangerous presidents may be able to overwhelm Congress, especially if push ever came to shove, but Congress should have every available cudgel in that struggle, including the power to bar former presidents from running again.