A review of thirty years of scholarship on why judicial impeachment - even on partisan grounds - is permissible.
Some have been arguing that holding an impeachment trial after Trump has left office would be imprudent, but there seems to be little resistance to it on constitutional principle. Those who defend the legitimacy of such a trial rely on tortured readings of the text, impute intentions based on what is omitted or inconsistent in the text, and pay insufficient attention to what the framers said about the relevant clauses. Much is made of the precedent of Secretary of War William Belknap’s being tried after having resigned, but little attention is given to the weakness of the arguments for Congress’s authority to do so (Hinds’ Precedents, Vol. 3). A precedent may be driven by partisan impulses or based on an honest misinterpretation of the Constitution.
Also used to bolster the case is the power in a couple of early state constitutions to impeach people who have left office. These are, however, irrelevant and, if of any value, argue for the other side.
I am generally conservative in political matters and lean toward the Republican Party, although less so given the loyalty of some and craven silence of others in the face of Trump’s gross disregard for the constitutional and legal order. I would be very pleased if Trump were disqualified from ever holding any national office. There is, however, no constitutional path for achieving this outcome.
Impeachment is inherently political. As Alexander Hamilton states in Federalist 65, it is a “method of NATIONAL INQUEST into the conduct of public men,” not into the conduct of private persons while they were in office. Those in office, and particularly presidents, are clearly distinguished from those out of office: “The President of the United States is liable to be impeached, tried, and, upon conviction…removed from office,” after which, as a private person, he is “liable to prosecution and punishment in the ordinary course of law” (Federalist 69).
The Constitution’s provisions for impeachment are not crystal clear. There is some uncertainty about the grounds for impeachment. All the stated grounds are strictly political: treason and bribery are inherently political, and the “high” in “high crimes and misdemeanors” distinguishes political ones from those defined by ordinary civil and criminal law. As Hamilton says (Federalist 65), impeachment concerns “abuse or violation of some public trust” and “injuries done immediately to the society itself.” This clarification hardly removes all vagueness, but how could the framers have developed a more precise and comprehensive list of grounds for impeachment? Impeachment, they understood, will necessarily involve unusually broad latitude for judgment. An impeachment proceeding “can never be tied down by such strict rules, either in the delineation of the offense by prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of the court” (Federalist 65). For this reason, they placed impeachment in large political bodies and established a high bar for conviction.
But did the framers consider this a comprehensive list? The specified grounds discussed above are in Article II.4, which requires the removal of the president and other officers if convicted for one of those misdeeds. It could be argued that this section mandates removal only if convicted of those specific charges, leaving open the possibility of being convicted on other charges. But the only sensible understanding of impeachment is that its aim is to remove malefactors from office. Leaving some unspecified latitude for lesser charges would contradict the framers’ fears that impeachment could become a tool of factions in Congress. In any case, this issue is not immediately relevant because the charges against Trump clearly fall within the specified grounds for impeachment and conviction.
There remains a slight ambiguity concerning the two consequences of conviction, and about this in particular, those arguing for the constitutionality of trying an ex-president make much. “Judgments 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” (Article I.3). Although there obviously cannot be a trial for removal from office if the person is already gone, can there be, nonetheless, a trial exclusively for disqualification? Only if these are clearly unrelated consequences of conviction can one even begin to argue that someone no longer in office could still be tried.
The evidence for the separability of disqualification is thin. One clause discussed above (II.4) speaks only of removal as the consequence of conviction. In the Federalist, Hamilton speaks of the president being “liable to be impeached, tried, and, upon conviction…removed from office” and says nothing about disqualification (#69). This passage, however, is contrasting the president from the king of Great Britain, who could not be removed. It would have been unnecessary, and even a little silly, to speak about disqualification of a king.
Elsewhere, though, the Constitution and the Federalist tie them together. Article I.3 states that judgment in cases of impeachment “shall not extend further than to removal from office, and disqualification to hold and enjoy any office.” Hamilton understands the two as concomitant consequences: conviction, which must entail removal, will also entail a “perpetual ostracism from the esteem and confidence, and honors and emoluments of his country” and later in the same paper he speaks of a sentence of impeachment as “dismission from a present, and disqualification for a future office” (Federalist 65).
The sensible interpretation, then, is that removal and disqualification are the two possible consequences of one impeachment trial, and only someone who is being removed by impeachment can also be disqualified. There might be two votes, one on each—for lack of a better term—punishment, but they would be within the context of the same trial.
It is doubtful, though, that the framers thought an impeachment trial could conclude with an officer being removed without also being disqualified from holding any national office. Would they have thought that someone convicted of treason, bribery, or genuinely high crimes and misdemeanors was nonetheless fit for office? In any case, that is as far as the ambiguities can be stretched, leaving us very far from any basis for trying someone already out of office.
The framers made a specific provision for impeachment trials of presidents by requiring that the Chief Justice of the Supreme Court preside. It seems at least implausible, were an ex-president also to be subject to an impeachment trial, that they would not have specified the same or some other provision?
Even if the arguments above are unconvincing, those pushing the legitimacy of trying an ex-president must explain how the momentous possibility of an impeachment trial for a private person was left by the framers to be discovered only through inferences based on slight inconsistencies and apparent silences in the text, inferences that are evidently contradicted by the surface of the text. And is it even remotely conceivable that they would speak of removed officers being still subject to the ordinary law and yet fail to mention ex-officers being subject also to an impeachment trial?
The defenders of a trial for Trump would need as well to be forthright about the implications of their argument. For example, could the Senate delay an impeachment trial simply to immiserate an ex-officer it could not convict? The Constitution, moreover, does not distinguish the conditions under which someone can be impeached from those under which he can be tried. If it is constitutionally unacceptable that someone escape an impeachment trial by resigning or being replaced, the same would be true for impeachment. In other words, if someone can be tried after leaving office, what would stand in the way of impeaching him too? Could a future Republican Congress take a shot at disqualifying, say, Hillary Clinton or James Comey?
But enough. The text and Hamilton’s commentary are sufficiently clear: those in office are subject to impeachment and trial; those out of office are not.
Yet what about, it might be argued, the 1776 Virginia and Delaware (Art. 23) constitutions? They allowed impeachments of private persons for their actions while in office. Both state that someone who was governor could be impeached only after leaving office, with the principal aim of the convicted person being “forever disabled to hold any office.”
These constitutions, in other words, are models for what is being defended and pursued in the case of Donald Trump: impeachment trials for ex-officers and to the end, without regard to removal, of disqualifying them from offices in the future. These constitutions, however, are perfectly explicit about this use of impeachment and the procedures to be followed. Nothing is left to inference.
Revisions of the Virginia (1830) and Delaware (1792) constitutions, moreover, replaced these regulations with those of the national constitution: House impeachment; Senate trial; conviction extending no further than “removal, and disqualification”; and thereafter subject to the ordinary course of law. Obviously, these states decided impeachment should be used to remove as well as disqualify officers. Had they wished the impeachment power also to apply to those out of office, they could not have been confident that mere inferences from the new language would do the trick. Surely, they would have explicitly distinguished removal and disqualification. They did not. And they would have carried the specific procedures for impeachment of private persons from their old into the new constitutions. They did not.
At least some of the framers must have considered the possibility of a public official avoiding impeachment or conviction by resigning. This probably would not have disturbed them much. The aim of impeachment is to remove someone from an office, the powers of which could be further misused. Resignation solves that problem. Resignation under these circumstances, moreover, would tend to be accompanied by some degree of public shame.
Who knows if someone thought about the extremely remote possibility of an officer’s term ending soon after committing impeachable acts and, therefore, before impeachment or a trial could be concluded? In any case, they made no provision for it.
Adhering to the Constitution as I understand it would mean that Trump, sadly, would avoid any direct political consequences for his impeachable actions. But he is out of office, and the question of impeachment is now moot.