Does the Constitution forbid the Senate from convicting a former official in an impeachment trial?
Robert Delahunty and John Yoo are in good company in thinking that the Constitution forbids the Senate from convicting a former official in an impeachment trial. But I think their argument for that view has two great weaknesses.
The first is that they wrongly take the other side of the debate to “concede. . . on the constitutional text” — by which they seem to mean that we acknowledge that the text of the Constitution confines impeachment to currently serving officials. That premise makes their argumentative work easier: To refute the other side as they present that side, they need establish only that there aren’t good reasons for overcoming the constitutional text. But the premise is false. I’m one of the people they mention, and I don’t acknowledge, because I don’t believe, that the text either says or implies that impeachment is limited to current officials. Scholars who believe the Constitution allows late impeachment — including Michael McConnell, Jonathan Adler, Brian Kalt, and many others — don’t make that concession either.
Speaking for myself, I’d say that the text does not clearly limit impeachment to current officials or clearly authorize impeachment for ex-officials. It doesn’t settle the issue. Historical practice and the logic of the Constitution’s impeachment provisions, though, push in the direction of resolving the ambiguity by allowing the Senate to convict an ex-official in an impeachment trial.
You can check out several of the above links — especially the McConnell post and the Kalt book chapter — to see various cases that the text is compatible with convicting ex-officials. None of those cases can be overcome merely by labeling these cases “non-textual,” asserting that the “plain meaning” of the text bars such convictions, and such other expedients to which the authors (like many but not all advocates of their position) resort.
Second, Yoo and Delahunty try to scare us with a parade of horribles that seems extraordinarily unlikely ever to start marching.
–If you allow convictions for ex-officials, they claim, soon you’ll be allowing convictions for people who never were officials at all. No. Mike Espy could be prosecuted for having taken a bribe as a federal officer, even though he was no longer a federal officer at the time of his prosecution. (I’m drawing the example from Kalt.) That didn’t mean that the law could be read to reach conduct by people who were never officials at all, or even conduct by people who weren’t officials at the time of the conduct. Again, those who believe the Constitution allows convictions for ex-officials are not following some who-cares-about-the-text caricature; they’re resolving an ambiguity in line with history and logic.
–They say that the Congress may as well start impeaching officials who have not committed treason, bribery, or high crimes and misdemeanors. This is the same non sequitur as the previous example.
–They say that under any reading permissive of late impeachments, Congress would have the power to impeach Hillary Clinton, James Comey, Jimmy Carter, or Barack Obama now. That’s true, but so what? Congress undoubtedly had the power to impeach each of these people while in office and did not do it. Presumably that’s because there are pretty strong safeguards against frivolous impeachments, such as the requirement of a two-thirds supermajority of the Senate for conviction. There is not much reason to suppose those constraints will generally operate with less force with respect to former officials.
That Congress has a power does not, of course, mean that it should exercise it in a particular case, and Yoo and Delahunty make additional arguments that trying Trump and convicting him now would undermine the public interest. Whether or not they are right about that point, their constitutional argument does not succeed.