Law & the Courts

Zombie Trump Shows the Need for a Constitutional Amendment on Late Impeachments

Then-president Donald Trump speaks at a campaign rally in Dalton, Ga., on the eve of the run-off election to decide both of Georgia’s Senate seats, January 4, 2021. (Leah Millis/Reuters)
With a response to Mitch McConnell’s argument against them.

Now I don’t deny that Trump–Jenner 2024 is going to be some ticket. But against the spectatorial pleasure I would take from that category-scrambling delight, I must weigh the downsides of Trump’s continuing political relevance.

First among them at present is that the House Republican caucus is, at the highest levels, infected by a cynical politics of deception, having just elevated one of the election-conspiracy peddlers to the No. 3 spot in its hierarchy. These were not just any deceptions, but deceptions calculated to thwart the constitutional transition of presidential power. (So please spare me the whole “you’d better be equally upset about the George Floyd riots” retort. Rioting is rioting. This is about a failed coup attempt, and the man who made it, and the rewarding of someone who helped him lay the ground for it, and the caucus that wants everyone to forget it ever happened even though the mastermind refuses to let us. Nor has anything since the Senate trial provided any reason to change our view of Trump. Yes, yes, the Sicknick medical report. I know. Ashli Babbitt is not available to be consoled.)

It’s hard to believe that this would be happening if Trump had been barred from seeking office again. I’m sure he’d still be lashing out between his golf rounds, but as a political contender he’d be finished, the public would know it, and the GOP as a whole would have no reason not to move on.

And even if this particular zombie contagion spreads no further, it doesn’t take much imagination to see how someday things might be worse. Every lie Trump entrenches, and every surrender of integrity he elicits from some politician who proves herself unworthy of her office, sets down a practical precedent for future unscrupulous politicians to apply.

So what we need to do is amend the Constitution and prevent this from ever happening again.

The House should be able to impeach federal officers for offenses they committed while in office for up to a month following their departure from office. The Senate should be able to hold a trial for up to three months after that. These time limits would prevent impeachments from being used to settle political scores long after the fact. But the possibility of late impeachments and trials would prevent an officer from doing great official wrong and then resigning or running out the clock to evade the consequence of disqualification.

*   *   *

Now that I’ve convinced two-thirds of Congress and three-fourths of our state legislatures of the wisdom of this course, I’ll let them get to it.

But in the meantime, I thought you and I might pause to regret that Mitch McConnell was wrong about late impeachments. He published an argument against them in the Wall Street Journal in February to explain his vote to acquit Trump. I’m glad he did and credit his sobriety and thoughtfulness. But I think the argument fails, by failing to engage the arguments that have been made against his position and in support of a different view.

Here is his main argument:

Everyone agrees that “treason, bribery, or other high crimes and misdemeanors” exhaust the valid grounds for conviction. It follows that the list of persons in that sentence — “the president, vice president, and all civil officers” — likewise exhausts its valid subjects.

If that list of current officers is not exhaustive, there is no textual limit. The House’s “sole power of impeachment” and the Senate’s “sole power to try all impeachments” would constitute an unlimited circular logic with no stopping point at former officers. Any private citizen could be disqualified.

The problem is this: If your argument for some interpretation, A, is that it avoids some unacceptable harm, but there is a rival interpretation, B, that also avoids that harm, then pointing to the harm cannot be a reason to prefer A to B, since both avoid the harm.

In this case, Interpretation A is the one McConnell offers of the proper subjects of impeachment: current officers only. And the harm he wishes to avoid is that any private citizen might be impeached. That must happen, he thinks, if we don’t adopt his limitation.

To present Interpretation B, I give you our Dan McLaughlin, who summarized it wonderfully back in January. (I don’t expect Mitch to read every word that Dan writes — he’s a busy man, and we forgive him if he misses an article or two. But the view you’re about to read was widely discussed before and during the trial — Dan is himself drawing on a 20-year-old review article by Michigan State law professor Brian Kalt — so it’s reasonable to assume that the Republican senators were aware of it.)

Dan writes:

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.

On this interpretation, Interpretation B, it is not true that anyone can be impeached. Only current officers or former officers are impeachable, and only for things they did while in office. So Interpretation B, no less than Interpretation A, avoids the harm that McConnell fears, i.e., the possibility that “any private citizen could be disqualified.”

Moreover, under Interpretation B it does not, pace McConnell, follow from the fact that “treason, bribery, and other high crimes and misdemeanors” exhaust the list of impeachable offenses that the current president, vice president, and civil officers exhaust impeachment’s valid subjects. In the second paragraph from McConnell above, the sudden appearance of “current” is — given Interpretation B — question-begging.

McConnell does, however, provide a second, independent argument for his view:

I side with the early constitutional scholar Justice Joseph Story. He observed that while disqualification is optional, removal is mandatory on conviction. The Constitution presupposes that anyone convicted by the Senate must have an office from which to be removed.

But, once again, under Interpretation B, according to which the Constitution specifies the offices in which one can commit impeachable offenses without limiting impeachment to current holders of those offices, then the Constitution does not “presuppose that anyone convicted by the Senate must have an office from which to be removed.” Rather, it says that removal is mandatory if the convict currently holds such an office. As for Story, he was a great jurist, but that adds no force to the argument. Even great jurists can be wrong.

McConnell makes one final constitutional observation, to preempt a possible objection to his view, before pivoting to a discussion of the politics of the recent impeachment. The paragraph that refers to Justice Story concludes:

This doesn’t mean leaving office provides immunity from accountability. Former officials are “still liable to be tried and punished in the ordinary tribunals of justice.” Criminal law and civil litigation ensure there is no so-called January exemption.

The problem here is that although Trump’s lies about the election, effort to subvert the transition of power, and incitement of an insurrectionary riot were grave political offenses against the Constitution and our republic, they were not statutory offenses. So it is not true that Trump can be held to account for them now, out of office. And the fact that he cannot be, combined with the Senate’s failure to disqualify him, is why he can go on harming the republic today.

*   *   *

Let’s step back for a moment and take a broader view of the dialectical landscape. What McConnell needed to do, for his argument to establish its conclusions, was to provide independent grounds of some kind for ruling out Interpretation B ab initio. Absent such grounds, everything he says just begs one question or another that is in dispute. But he does not provide such grounds.

Dan provides some independent grounds for the possibility of Interpretation B — for example, that certain Framing-era figures, such as John Adams and John C. Calhoun, believed they could be impeached after they had left office for things they had done while in office. And he notes that the Framers were influenced by the British parliament’s impeachment of Warren Hastings after he had left office as the governor-general of India.

Even so, you might wonder why, if the Framers meant to allow impeachments of former officers, they didn’t just say so. We can take clues from history. But the fact remains that they wrote, “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.” They did not write, “A current or former President, Vice President, or Civil Officer of the United States shall be subject to Impeachment for Treason, Bribery, or other High Crimes and Misdemeanors, and shall be removed from Office on Conviction.” So what justifies us in even entertaining Interpretation B? Merely a few historical clues and scattered remarks?

I would turn the question around: Given that there is some evidence that Framing-era figures believed late impeachments were possible, can we make sense of the omission of any mention of late impeachments in the Constitution?

I think we can. We simply must keep in mind that the very purpose of the Constitution is to describe the operation of the current government. It is an instruction manual for those who currently hold office, and so the Framers naturally would have written about current officers. But that doesn’t mean they wished to rule out the impeachment of former officers, and the historical evidence that they considered such impeachments possible should accordingly be taken as showing a background assumption that was in place as they wrote.

Article II, where the sentence about “high crimes and misdemeanors” appears, tells us how the executive branch is to operate. To tell us that, it must tell us, among other things, for what offenses officers should be impeached and removed. But it would be simply beyond the scope of this portion of the instruction manual to discuss former officers, because they are not part of the machine of government whose operation is being described. (“Civil Officers” in Article II has, incidentally, been interpreted to cover judges. My view here is slightly eccentric — I do not think the Framers intended that reading, since there is a separate article, Article III, that provides instructions for the judiciary, while Article II is focused on the executive branch. Article III does say that judges “shall hold their Offices during good Behaviour,” but I think that mechanisms for their removal other than impeachment might be constitutionally sound. Alternatively, the Framers may have assumed that impeachment would be the method of removing badly behaved judges without meaning to anchor the impeachability of judges in Article II; this would be consistent with their having held a wider background view of impeachment than we do today. Regardless of all that, it remains the case that the Constitution is explaining the operation of the current government and would not naturally have taken former officers — whether executive or judicial — as subjects.)

You might still find this too flimsy a basis for allowing Interpretation B. I might think so myself, were it not for the further piece of textual evidence in Article I. Article I is the instruction manual for the current Congress, and part of what it must explain is the procedure by which the Senate is to try impeachments. One of the instructions is that the Senate’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.” Disqualification is a judgment that the Framers wanted the Senate to be able to render. But, as many commentators have noted, if former officers are not subject to impeachment and conviction, there is a giant loophole allowing any current officer to avoid disqualification by resigning before he is impeached. If removal from office were the only judgment the Framers had meant to allow, then resignation would pose no problem, since it achieves the same effect. But the Framers clearly wanted to allow something more. They wanted the Senate to be able to exclude officers from returning to office. And the only way to make sure that that is possible is to allow late impeachments and trials.

In the end, we cannot get around the following interpretative choice:

(1) We read the Constitution as allowing impeachments and trials of former officers, and in doing so we go beyond (but do not contradict) the text of Article II. In this case we attribute to the Framers the minor drafting error of having assumed that we would assume what they assumed — namely, that late impeachments are possible — and so of having failed to spell out their thinking to us.

(2) We render the mention of disqualification in Article I otiose, and the Constitution functionally self-contradictory, by positing a loophole that any accused official can drive right through to avoid being disqualified. In this case we attribute to the Framers the major drafting error of having created a function of the Senate–qua–impeachment court but then failed to notice that, in limiting impeachments to current officers, they destroyed that function. I guess they were just kind of stupid.

I would prefer to attribute to them the minor error of having thought that we would think as they thought. Most of the Republicans in the Senate preferred to make them stupid, with the result that Zombie Trump goes on extending the harm of the high crimes he committed in office and contaminating our politics in ways that another demagogue might reprise and worsen down the line.

So as I was saying, let’s get that amendment going.

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