Trump Can Still Be Impeached After He Leaves Office

The wisdom of impeaching Trump after he has left office may be debatable, but the better originalist reading of the Constitution is that Congress has the power.

A s I wrote last Thursday, Donald Trump should be held morally and politically responsible for the riot that interrupted Congress from counting the electoral votes as mandated by the Constitution and forced his own vice president and members of Congress to flee for their lives. True, the rioters are also responsible for their own actions, and should be punished to the maximum extent of the law. True, Trump’s conduct would not meet the legal standard for criminal incitement of violence, which is required by the First Amendment to be a very narrow standard. And true, we should not lightly blame public figures for political violence simply because they engaged in heated rhetoric. But Trump was on the scene immediately before the riot, he riled up the crowd that stormed the Capitol building with apocalyptic language accusing Congress of being gathered to destroy American democracy, and he aimed and directed them at the Capitol. As Robert Wright explains (watch from around 8:00 to 12:45), the timing of Trump’s words and acts put a particular target on the physical safety of Mike Pence:

This has crossed a line not only compared to Trump’s previous behavior, but also compared to anything done by a president in American history. It cannot and should not simply be moved on from without some consequence.

If Trump should be held politically responsible, but cannot properly be held criminally responsible, what processes are available to do that? As my prior column explained, removing Trump under the 25th Amendment is at least arguable, although it would undoubtedly strain the outer limits of the text of the amendment, and create a precedent that could be abused. In any event, Pence is apparently uninterested in pursuing that avenue, which would be aimed less at accountability than at preventing further damage. On that score, Trump now seems to be somewhat cowed and abashed by the reaction, although Trump being Trump, one cannot fairly predict how long that mood will last over the remaining nine days of his term.

Three other possibilities have been suggested, all of which would fall under Congress’s purview: impeachment, censure, or declaring Trump an insurrectionist under the 14th Amendment. I will return later to the 14th-Amendment argument, as well as the prudence of pursuing any of these avenues. Given that any impeachment trial could not take place until after Trump has left office, the threshold constitutional issue is whether an impeachment trial can be held against a former government official.

This is an unsettled question, and the Constitution’s text does not offer an explicit answer. The Supreme Court has never pronounced on it. The Senate has never convicted a former, rather than sitting, federal official. On at least one occasion, the Senate declined to convict a former secretary of war who had resigned just before being impeached, and a decisive margin of the senators who voted to acquit did so specifically because he was no longer in office and they doubted their constitutional power to convict him. I have, for that reason, long been skeptical that former officials could be impeached. (Recall, Matt Gaetz was roundly mocked in December 2019 for suggesting that a former president could be impeached). Having delved more closely into the question, however, I now think there is a strong argument that the power of impeachment extends to former presidents, other former executive branch officials, and former judges. If the House impeaches Trump under the resolution introduced Monday, it will be the duty of the Senate to try him even if he has since left office.

The Constitutional Text

The best argument on this score has been laid out by Professor Brian Kalt’s 2001 law review article on the subject. Aside from the provisions dealing with the power of the House to impeach, the Senate to try impeachments, and the procedures for conducting a trial, there are two main parts of the text at issue. Article II, Section 4 of the Constitution provides:

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.

Article I, Section 3 adds:

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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Neither of these provisions deals directly with “late impeachments,” i.e., impeaching or trying an officer who has already left office. As Kalt notes, opponents of late impeachment have tended to raise three reasonable lines of textual argument. First, the Constitution speaks of impeaching “the President, Vice President and all civil Officers,” and a natural reading of the language would seem to limit impeachment to people who are currently serving in those roles. But does allowing late impeachments make the text nonsensical? Not really. The listing of which officers could be impeached is necessary to identify which offices are subject to impeachment. The very first impeachment, targeting former senator William Blount in 1797, was dismissed by the Senate on the grounds that senators cannot be impeached. (The Senate thus did not get to the separate question of Blount no longer being in office.) Under British practice, it was even theoretically possible to impeach private citizens; American texts tended to specify the relevant offices to preclude this. So, saying “the President, Vice President and all civil Officers” does provide a meaningful limit on who can be impeached. It also arguably limits what offenses can be impeachable: those committed while serving in those offices. If the text is read in that way, a president could only be impeached for his conduct as the president, and not for his conduct as a candidate, private citizen, state official, or member of Congress.

As Kalt notes, this is how federal criminal statutes are commonly read: Mike Espy, for example, was indicted for his conduct as an “officer . . . of the United States” for acts taken as secretary of agriculture, even though he was no longer in that office when he was indicted.

Second, the “shall be removed” language may be read to mean that an impeachment can only be brought when removal is a possibility. But this might be a stronger argument if this were the only reference in the text to impeachments or their consequences, and again, the text serves an alternative purpose: it makes removal mandatory upon conviction. By contrast, disqualification from holding future offices is not mandatory. Senate practice has been to hold a separate vote on disqualification after the vote on conviction, with only a majority vote required. Some officials have been removed and not disqualified. Alcee Hastings still serves in Congress even though he was convicted by the Senate and removed as a federal judge 31 years ago.

Third, a number of Founding-era state constitutions explicitly provided for impeaching former officials, and the federal constitution did not. Moreover, no state constitution barred late impeachments. Taken together, this could mean that the default rule was that late impeachments required specific authorization in the text, and so the absence of that authorization limits the Senate’s power to convict a former official.

Then again, the fact that some state constitutions allowed late impeachments while none barred them can be read the other way as well: It means that nobody thought impeaching a former official was categorically out of the question, and nobody thought it an evil to be specifically guarded against. Also, in some cases, notably that of Virginia, explicit provision was made for late impeachment in order to balance the fact that governors served only one-year terms and were barred from being impeached during their terms (there was even an effort to impeach Thomas Jefferson after he left office as governor of Virginia). Both James Madison and Alexander Hamilton argued in The Federalist Papers that the federal Constitution’s impeachment provisions were stronger than in those states, such as Virginia, that barred impeaching a sitting governor. The fact that states sometimes required impeachment to wait until a governor left office suggests rather strongly that Founding-era constitutionalists believed that impeachment served other purposes besides removal.

The History and Purpose of Impeachment

The history and purpose of the text suggest that the Constitution was not understood when it was ratified to limit impeachment to current officials. Impeachment was, as Alexander Hamilton noted in Federalist No. 65, modeled on the British practice. The Founders were quite conversant in the sensational impeachment of Warren Hastings, which was ongoing in Parliament as the federal Constitution was being written. George Mason even referenced the Hastings impeachment as a model during the debates on the grounds for impeachment; the “high Crimes and Misdemeanors” language was identical to British terminology used by Edmund Burke in drafting the Hastings bill of impeachment. Hastings, the former governor-general of India, was out of office when Parliament impeached him, and the trial in the House of Lords dragged on for nine years thereafter. As Kalt notes, Hastings’s was the first impeachment in Britain in 61 years, so both the Hastings impeachment and its most recent predecessor were important landmarks in British practice. Burke, in a 1770 pamphlet, had warned that “impeachment, that great guardian of the purity of the Constitution, is in danger of being lost, even to the idea of it.” The prior impeachment, in 1725, had also been against a former official.

The British clearly saw impeachment as a form of calling public men to account, and not merely as a method of removing them — a distinction of particular importance in an era when a man’s honor and reputation were vital enough that besmirching them outside of a proper legal process could easily lead to a libel lawsuit or a duel. Many early Americans saw things the same way. Kalt notes that John C. Calhoun once demanded an impeachment inquiry to clear his name regarding his conduct in a prior office, and quotes John Quincy Adams speaking 18 years after leaving the presidency:

I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.

The most direct challenge to the constitutionality of impeaching a former official came in 1876, when the Democrat-controlled House impeached Ulysses S. Grant’s secretary of war, William Belknap, just hours after he resigned. In the Republican-controlled Senate, a majority of senators voted down a motion to dismiss the case on the theory that Belknap was out of office and beyond their reach, but conviction fell short of a two-thirds majority by two votes precisely because a number of Republican senators argued that they could not convict a former official. The two Belknap votes thus provide arguable precedent for both sides of this question. The same, as Kalt notes, is true of court decisions; while the federal courts have refused to rule on impeachment-related questions, state courts in Texas and Florida have divided on whether former officials could be impeached.

The originally understood function of impeachment, and the availability of disqualification as a remedy, argues in favor of a late impeachment such as those brought against Hastings and Belknap, and specifically argues for it as a remedy against a lame-duck official’s actions near the end of his term. The Founders intended impeachment in part as a deterrent to misconduct. They designed the remedy of disqualification from future office for situations where mere removal from office is not a sufficient remedy, and for when the criminal law would not offer a realistic threat of later criminal prosecution — precisely the situation we face now. Both of these functions would be defeated if misconduct late in an officer’s term could not, in practical terms, ever result in an impeachment. This functional argument is even stronger if you think presidents can pardon themselves, in which case impeachment is the only remedy for late-term misconduct. The Founders provided explicitly that a pardon does not extend to sanctions imposed by impeachment.

The wisdom of impeaching Trump after he has left office may be debatable, but while the question is a close one, the better originalist reading of the Constitution is that the power to do so is firmly in the hands of Congress.