The ‘Late Impeachment’ Question

President Trump disembarks from a helicopter in Harlingen, Texas, January 12, 2021. (Carlos Barria/Reuters)

Precedent and purpose cut against the argument that the Constitution bars lawmakers from holding an impeachment trial after Trump leaves office.

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Precedent and purpose cut against the argument that the Constitution bars lawmakers from holding an impeachment trial after Trump leaves office.

NRPLUS MEMBER ARTICLE M ichael Luttig is an estimable conservative legal thinker who used to be a federal judge. He reportedly helped to persuade Vice President Mike Pence that Pence did not have the power to overturn the results of the presidential election, and thus played a role in protecting the Constitution over the last few weeks. Now he is in the Washington Post arguing that protecting the Constitution also requires abandoning the idea of holding an impeachment trial after President Trump has left office. It’s not a frivolous case, but the proponents of “late impeachment” (including my colleague Dan McLaughlin) have a better one.

Luttig argues from the constitutional text, its purpose, and its historical interpretation. Let’s take them in order.

Text

The former judge does not spell out the textual arguments, perhaps thinking them obvious. I’ll assume he is adopting the standard ones: that the Constitution speaks of impeaching a president, not an ex-president, and that it prescribes his removal from office, which presumes that he continues to hold office.

The text’s reference to the president (and the vice president and “all civil officers”) does not, however, have to be understood to exclude former officials. The reference makes at least as much sense as a way to identify the positions from which a person can commit an impeachable offense. Congress can’t impeach someone who has never held public office, no matter how gross his conduct, and very likely cannot impeach someone who has held it for conduct that took place while not in office.

The reference to removal from office, meanwhile, can be read as a necessary consequence of convicting a current officeholder rather than as a requirement that impeachment apply only to those who can be removed from office. That’s exactly how similar provisions in the law are read. Brian Kalt, a law professor at Michigan State University who is an authority on impeachment, notes in his book Constitutional Cliffhangers that former Agriculture Secretary Mike Espy was prosecuted under an anti-bribery law that applies to federal “officer[s]” and that says they “shall . . . be summarily discharged from office” after conviction. It didn’t matter that Espy was no longer a federal officer, and could no longer be discharged from office.

Purpose

Luttig says that the purpose of the Constitution’s impeachment provisions is “to remove from office a president or other ‘civil official’ before he could further harm the nation from the office he then occupies.” He is obviously right in identifying an important purpose of impeachment. There is no reason, however, to assume that it’s the only legitimate purpose. If it were, it would not make sense for the Constitution to mention disqualification from future officeholding as a permissible punishment. And if preventing future officeholding is part of the protective function of impeachment, allowing the use of impeachment to disqualify former officeholders helps its achievement.

Impeachment also serves the purpose of deterring presidents and future presidents from engaging in impeachable conduct. That purpose, too, is strengthened by making impeachment available even after a president has left office. Otherwise, presidents would have much more room to commit outrages late in their presidencies, or even to commit outrages at other points in their presidencies and then resign.

There is also the “national inquest” function of an impeachment to which Hamilton alludes in Federalist No. 65. While an impeachment trial need not always involve a detailed examination of evidence by senators, it can involve such an examination. Barring late impeachments would undermine this purpose by giving Congress less power to look into abuses late in a presidency.

History

Luttig concedes that Congress has on two occasions impeached officials after they resigned, and says these episodes give some weight to the argument that the Constitution allows for late impeachment. Then he just leaves the point floating, saying the Supreme Court would be the last word on this matter — an assertion that is, incidentally, open to question in its own right — and would probably conclude that the Constitution is “clear” that late impeachments are forbidden. In other words, he offers no argument that history is on his side and rests his case on text and purpose.

But the historical evidence for late impeachment is even stronger than Luttig allows. Even when Congress has declined to pursue impeachment trials for ex-officeholders, it has left open the possibility that it can. In 1926, Judge George English resigned days before his impeachment trial was to start. Kalt writes:

The House managers told the Senate that while they recommended terminating the proceedings, they believed that “the resignation of Judge English in no way affects the right of the Senate, sitting as a court of impeachment, to hear and deter-mine” the charges against English. No senator suggested that it would have been impossible or unconstitutional to proceed; one senator noted, without contradiction, that he wanted it “distinctly understood” that the case was not a precedent against late impeachability. Indeed, nearly everyone acted as though they could have proceeded with the trial.

One way of reading all of the evidence is that the constitutional text does not explicitly say whether late impeachment is permissible, but the weight of precedent points toward the conclusion that it is and so does the purpose of the impeachment process. Constitutionally conscientious members of Congress should give Judge Luttig’s case careful consideration, but then reject it.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.