The pursuit of Trump after he has left office threatens to degrade the Constitution and to shatter what remains of national unity.
The American republic desperately needs a respite from the extreme political factionalism of the recent past.
N ow that it has received the articles of impeachment and designated Patrick Leahy as the presiding judge, the Senate will have to officially decide whether it has the jurisdiction to try Donald Trump. A court — even a court of impeachment — first must ask if it has the constitutional authority to hear a case. Only after it has found jurisdiction can a court turn to the merits of the claim. When Congress’s power over ex-officials is so doubtful, the Senate’s most prudent course would be to dismiss the case — regardless of whether it believes Trump committed “incitement of insurrection” — and allow the Justice Department and the courts to apply federal criminal law.
In this piece, we give a more complete argument against the impeachment of ex-officials. The question whether the Senate has jurisdiction to try the former president divides conservative legal scholars into two opposing camps. The Constitution’s plain text refutes the view that the Senate can try a private citizen, even an ex-president accused of inciting an insurrection. Conservative advocates of a Senate trial, however, rest on the claim that the Framers originally understood a broad impeachment power not fully established in the text. But in our view, the historical evidence provides weak reasons at best to reject the Constitution’s plain meaning. Faced with such evidence, the Senate should not take the unprecedented step of trying an ex-president for impeachment because of the harm to the executive branch’s independence and the Constitution’s separation of powers.
Leading conservative and libertarian supporters of impeachment, however, believe the Senate may try, convict, and sentence Trump to permanent disqualification from federal office. Steven Calabresi, one of the founders of the conservative Federalist Society (the group that cultivated many of the Trump administration’s star judges), led a letter of scholars who came down against the ex-president. “We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation,” wrote the signatories. “But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.” National Review’s own Matthew Continetti, Andy McCarthy, Jay Nordlinger, Ramesh Ponnuru, and Kevin Williamson all agree.
These Trump critics generally argue that conservatives should defer to the original understanding of the Constitution to find that Congress can impeach an ex-president. They wisely concede, however, on the constitutional text. And some commentators, such as Chicago law professor Richard Epstein, Harvard law professor Alan Dershowitz, and former judge Michael Luttig, have argued that the Constitution standing alone extends impeachment only to current federal officers. Article II of the Constitution declares that “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.” Impeaching a former official flatly contradicts this wording. After January 20, Trump no longer qualifies as an “Officer of the United States,” and the sentence of removal cannot apply to someone who is no longer in office. If Trump is still the “President” for purposes of the impeachment clauses, why is he not still the “President” under the Commander in Chief clause?
Other constitutional provisions do little to undermine this textual reading. Most of the other clauses relating to impeachment describe its process, rather than its substance. Article I defines House impeachment, Senate trial, the two-thirds requirement for conviction, and the chief justice’s role as trial judge when the president is the defendant.
Supporters of Trump’s impeachment must make heavy inferences from these procedural clauses. Take Article I, Section 3’s “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.” Trump critics argue that by including future disqualification, the Founders intended impeachment to extend to former officials. But it is not clear from this text whether disqualification must accompany removal (notice the “and” before “disqualification”), or whether it constitutes an independent and separate penalty.
Trump’s critics must rely on a power of impeachment outside the pure confines of the constitutional text. They must argue that when Article II prescribes removal as punishment for “the President, Vice President, and all civil Officers of the United States,” it only describes the standard that applies, and the punishments available, to existing officers — but not former ones. They point out that Article III of the Constitution states that Congress can remove federal judges who violate the “good behavior” standard, but does not make clear elsewhere that impeachment even applies to federal judges. Therefore, the power to impeach judges must come from an impeachment power understood to be in the Constitution even if not expressed in its text.
Any originalist should recognize the faults of this non-textual approach. It contains within itself no limiting principle as to time or targets or terms. If Article II only describes the punishments due to current officers, but does not define other targets of impeachment, then impeachment can include all former executive officers and judges. Congress could impeach Jimmy Carter for the failed Iran hostage rescue operation or Barack Obama for refusing to enforce the immigration laws. It could impeach any former cabinet officer too; it could charge Hillary Clinton for failure to safeguard classified information or James Comey for provoking the Russia special counsel investigation.
If Article II applies only to existing officers but not former ones, then Congress theoretically could use something other than the high crimes and misdemeanors standard. Why not impeach former presidents for “maladministration,” a standard rejected by the Founders in favor of “high crimes and misdemeanors,” which apparently only applies to existing officers.
Even more worrisome, this theory means that Congress need not limit its scope to federal officials, either present or past. Impeachment could target private citizens who had never held public office — as had occurred in Great Britain in the centuries before the Constitution — or state and local officials. If we adopted British practice before the ratification of the Constitution, Congress could even impose punishments beyond removal or disqualification too, so long as the defendants were not current office holders.
In British practice, for example, Parliament could impose any punishments allowed by law, including imprisonment or even death. Parliament could reach even private citizens. Once impeachment exists outside Article II, the constitutional text does not limit Congress’s discretion on any of these issues.
Trump’s critics appeal to such historical practice to overcome the constitutional text. They argue that, in addressing impeachment in bits and pieces throughout the Constitution, the Founders consciously intended to adopt the whole of British constitutional practice. They correctly note that the Founders would have been aware of the case of Warren Hastings, whom Parliament impeached for his acts as governor-general of India, but after he had resigned and returned to England. But Hastings, whom the House of Lords eventually acquitted in 1785, would prove too much. Adopting the British practice would imply that impeachment can also extend to private citizens, contain no statute of limitations, and include criminal punishments of fines and jail time.
Indeed, the British model is a misleading guide. In Britain, Parliament could only impeach the king’s ministers, but not the monarch himself. By contrast, the Constitution subjects the president to impeachment and removal. The two models are fundamentally dissimilar and do not map on to each other.
In fact, the most reliable originalist sources tend to support our view. Both sides must admit that the history of the drafting and adoption of the Constitution provides no compelling evidence to settle the question. Neither the debates of the 1787 Philadelphia Convention (which wrote and proposed the constitutional text but whose proceedings remained secret until after James Madison’s death in 1836), nor the records of the 1787-1788 state ratifying conventions (which actually exercised the legal authority to adopt the Constitution), contain any direct discussion of whether impeachment could apply to ex-officials. An originalist should only adopt a non-textual reading of the impeachment power if we were to see extensive discussion at the time of the Constitution’s adoption that clearly assumed such a power to exist (much as Justice Antonin Scalia read the Second Amendment’s “right to bear arms” in District of Columbia v. Heller, Alexander Hamilton read the executive power clause to defend the Neutrality Proclamation, or as we have argued with regard to the president’s authority to launch hostilities abroad).
In contrast, the most significant governing instruments of the day — the state constitutions — support the idea that the Constitution extends impeachment only to officers of the present, not the past. It appears that many revolutionary Americans who wrote the first state constitutions intended impeachment to apply to former office holders. But when they wanted to adopt this British practice, they explicitly said so. Pennsylvania’s 1776 Constitution, perhaps the most radical of the state constitutions, made clear that impeachment would apply to an executive officer “either when in office, or after his resignation, or removal.” The Virginia Constitution of 1776 stated that the governor, “when he is out of office,” could be impeached by the House of Delegates. Delaware’s 1776 constitution similarly made clear that the legislature could impeach the executive “when he is out of office, and within eighteen months after.” In 1777, Vermont’s Constitution stated that the assembly could impeach executive officers “either when in office, or after his resignation, or removal.”
When the states wanted to include former officers in impeachment, they clearly said so in their constitutional texts. Other state constitutions of the time, such as 1777 New York and 1780 Massachusetts did not follow these examples. Instead, these states explicitly applied impeachment only to current officers. These later state constitutions, which provided models for the federal Constitution, sought more balance between their executive and legislative branches. Originalists should read such silence on impeaching former officers as a rejection of the earlier, radical state constitutions.
Finally, originalists should recognize the structural problems with relying upon a non-textual impeachment power. Impeachment made sense within the context of the British constitution — and even the British dropped impeachment by the early 18th century — because Britain had no true separation of powers. Parliament could impeach and convict ex-officers, but it could also try and convict any individual for regular crimes. Our Constitution, however, institutes a careful separation of powers that rejects the British idea that the legislature could both define and execute the law. Montesquieu’s axiom that “there is no liberty if the power of judging be not separated from legislative power and the executive power” was probably one of the most quoted authorities during the Framing. A non-textual impeachment power that allowed Congress to convict and sentence even private citizens, without limit as to time or even punishment, would run counter to the Framers’ invention of a separation of powers.
Furthermore, a non-textual impeachment power would undermine the Constitution’s effort to make the president independent of Congress. As Brown historian Gordon Wood has shown, freeing the executive from the control of the legislative branch represented one of the important objectives of those who wrote and ratified our founding document. For example, the Framers rejected proposals for congressional selection of the president and instead decentralized the choice by giving it to the states through the Electoral College. They also understood that the power to fire the president would give Congress the power to control the executive. Hence, they made it difficult to remove the chief executive by creating the two-thirds requirement for conviction of impeachment.
Imagine the incentives created if the Framers had allowed Congress to impeach not just the current president, who could at least muster supporters in the Senate, but also all ex-presidents and, indeed, all ex-federal officials. Suppose Congress could not only impeach all former executive officers, but subject them to disqualification and even criminal punishment. Such humiliation and harassment would provide a powerful incentive to bend the knee to Congress while in office — the very outcome decried by the Founders when they created an independent executive branch.
Critics may ask: If the Senate lacks jurisdiction to try Trump, does that mean he would be legally unaccountable for the alleged crime of incitement? It does not. Trump might still be held liable by an ordinary court of law if, indeed, he has committed a federal crime. The absence of Senate jurisdiction does not imply that there is no other forum available to establish accountability (or, equally, to acquit Trump if the charge is unfounded).
Federal officials who have been impeached are subject to criminal prosecution for the same underlying actions. (When Gerald Ford pardoned Richard Nixon, it was to prevent Nixon from being criminally prosecuted for the alleged crimes for which he might have been impeached.) The Constitution’s impeachment clauses in fact explicitly preclude the defense of double jeopardy. And the Constitution leaves the sequencing of a criminal prosecution and an impeachment proceeding open. A criminal proceeding against the official usually precedes the impeachment case, because the criminal trial and conviction can lead to the discovery of evidence of misconduct meriting impeachment and removal. Several federal judges have been criminally prosecuted and convicted for conduct that has formed the basis for a later congressional impeachment.
In Trump’s case, even if the Senate had jurisdiction, the better course by far would be for the Department of Justice, under the leadership of Biden’s nominee for attorney general, Judge Merrick Garland, to investigate Trump’s alleged criminal incitement and, if the charge has merit, to prosecute and try him. First, the public at large would likely put more trust in the integrity of Judge Garland and the career Justice Department prosecutors under him that it does in Senate politicians like Chuck Schumer and Mitch McConnell. Second, if the prosecution and trial of the former president led to a criminal conviction, the impeachment charge brought by the House would be shown to have had more substance than now appears. Conversely, were the Department of Justice to decide that no prosecution should be brought because Trump had not committed criminal incitement, or if Trump should be acquitted after trial on that charge, those conclusions, while not binding on the Senate, would certainly bear on the question whether Trump had committed a high crime or misdemeanor disqualifying him from holding future federal office.
In other words, there is no need for the Senate to rush to judgment, especially since Trump is out of office. If the Senate were to try him at all, it should do so only after any criminal proceeding has run its course. Until then, it should either recognize that it lacks jurisdiction or at least suspend any trial proceedings until the Justice Department finds the facts.
After last November’s contested election, the American republic desperately needs a respite from the extreme political factionalism of the recent past. The country is still in the grip of an ugly pandemic that has enflamed political passions and distorted political judgments. Our political leadership, starting with President Biden should call for a time-out from the infighting. The pursuit of Trump after he has left office threatens to degrade the Constitution and to shatter what remains of national unity. Those who believe that Trump has committed a crime and should be punished for it have an alternative to an impeachment trial in the ordinary criminal-justice system. Even if the Senate had jurisdiction, it owes it to the country to stay its hand until Trump’s guilt or innocence is tried in a court of law. The new president claims to be calling for national unity and reconciliation. There is no unity without forbearance.