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The Senate makes the decision while the person is in office. After they’re out of office it is the courts. Again. See Nixon Pardon and Clinton Plea Deal.

McConnell votes for acquittal, but then says there's 'no question' Trump is responsible for riot
Trump "is practically and morally responsible for provoking the events of the day," McConnell said just after the Senate acquitted the former president.
But in his floor speech after the vote, McConnell endorsed the view that “President Trump is still liable for everything he did while he was in office.”
“He didn’t get away with anything, yet,” McConnell said, noting that “we have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being [held] accountable by either one.”
Now, the repubs say the courts should not be involved?