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Impeachment After Leaving Office

Some legal analysts argue that a president’s impeachment cannot constitutionally continue after the end of the president’s term. (Former Federal Appellate Judge J. Michael Luttig argues it here, law professors Bruce Ackerman and Gerard Magliocca advance the claim here.) The main reason supporting the claim is straight forward: Impeachment is a means to remove a president prior to the next election. Once the president’s term has ended, the raison d’être for impeachment has therefore also ended. Confounding this understanding of impeachment, however, two early state constitutions actually limited impeachments to the time after the chief executive’s term had ended; these states did not permit impeachment of a sitting governor. Additionally, a decision by the Texas Supreme Court in a case of a gubernatorial impeachment provides a practical reason why impeachments cannot be limited to sitting executives.

Consider first the impeachment of Texas Governor James E. Ferguson in 1917. Ferguson resigned the governorship prior to his conviction by the Senate, so he was not a sitting governor when the Texas Senate convicted him in its impeachment trial. He subsequently sought to run again for governor in 1924. The Texas Supreme Court held that Ferguson’s impeachment actually occurred despite the fact that Ferguson had resigned his office prior to his conviction by the Senate.

The Texas Constitution, like the U.S. Constitution, does not limit the judgment from an impeachment to removal from office. Section IV of Article XV of the Texas Constitutions provides that “Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State.” This language almost exactly parallels the language of Article 1, Section 3 of the U.S. Constitution. Both constitutions allow a future disability, disqualification to hold office in the future, as part of the outcome of an impeachment.

Despite the Senate’s conviction, Ferguson sought to run for governor again in 1924. Against a lawsuit filed to prevent the Texas Democratic Party from listing him on the primary ballot, Ferguson argued that his impeachment trial ended without a conviction or judgment because he resigned his office before the Senate decided the case.

In its decision in Ferguson v. Maddox, the Texas Supreme Court gave short shrift to Ferguson’s argument:

If the Senate only had power to remove from office, it might be said, with some show of reason, that it should not have proceeded further when the Governor, by anticipation performed, as it were, its impending judgment. But under the Constitution the Senate may not only remove the offending official, — it may disqualify him from holding further office, and with relation to this latter matter, his resignation is wholly immaterial. For their protection the people should have the right to remove from public office an unfaithful official. It is equally necessary for their protection that the offender should be denied an opportunity to sin against them a second time. The purpose of the constitutional provision may not be thwarted by an eleventh hour resignation.

The reasoning applies to impeachments under the U.S. Constitution. If a president believes he or she will be convicted by the Senate, and perhaps entertains the hope of running for president or some other national office again, the president could avoid disqualification from future office holding merely by resigning before a Senate conviction.

The possibility of manipulation aside if impeachment is limited to an official’s term of office, at least two early state constitutions did not even allow impeachment of a sitting state executive; impeachments could occur only after the chief executive left office.

The Ferguson case also demonstrates that the possibility an impeached official could again run successfully for office is not too farfetched. James Ferguson proved so popular that when he was unable to run again for governor in 1924 his wife—“Ma Ferguson”—ran in his stead, and was elected. Ma Ferguson did not have a separate political identity. She ran as the substitute for “Pa” Ferguson. Popular support for “Pa” was, apparently, sufficiently great that he could have been re-elected in his own right despite his earlier impeachment.

The possibility of strategic manipulation aside if impeachment is limited to an official’s term of office, at least two early state constitutions did not even allow impeachment of a sitting state executive; impeachments could occur only after the chief executive left office.

The Virginia Constitution of 1776—a particularly important and well-known example to the national founders—provides:

The Governor, when he is out of office, and others, offending against the State, either by mal-administration, corruption, or other means, by which the safety of the State may be endangered, shall be impeachable by the House of Delegates. . . .  If found guilty, he or they shall be either forever disabled to hold any office under government, or be removed from such office pro tempore, or subjected to such pains or penalties as the laws shall direct (emphasis added).

That a former governor would be removed from an “office pro tempore” in the last sentence refers to any subsequent state office the former governor might be holding at the time of an impeachment after his term as governor had ended.

Article 23 of the Delaware Constitution of 1776 similarly provided “The [state] president, when he is out of office, and within eighteen months after . . . shall be impeachable by the house of assembly before the legislative council . . .” Possible judgments included that the impeached official would be “forever disabled to hold any office under government, or removed from office pro tempore, or subjected to such pains and penalties as the laws shall direct.”

Interestingly, the understanding that a chief executive could be impeached at any future time after leaving office was apparently so well accepted that it led the Delaware constitutionalists to limit the period of allowable impeachment to eighteen months after an official left office.

The modern understanding of impeachment so identifies the practice with removal from office that we cannot but wonder what the purpose would be of limiting impeachments to officials who had already left office.

The answer derives from a straightforward separation-of-power rationale. Constitutionalists in these states feared that allowing their legislatures to remove chief executives while the executives were still in office would give the legislatures too much power over these executives. The legislatures could then use the fear of impeachment to induce executives to do their bidding, thereby undermining the purpose of separating executive from legislative power in the first place.

While the U.S. Constitution drew a different line, allowing impeachment of presidents while in office, the fear that prompted Virginia’s and Delaware’s limiting impeachment to the time after an executive has left office is hinted at in Hamilton’s discussion of impeachment in Federalist 65. Early in his discussion, Hamilton writes that creating a “well-constituted court for the trial of impeachments” is “difficult . . .  in a government wholly elective.” The problem is the political fear that impeachment decisions “will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.”

The possibility of political abuse of the impeachment power apparently so concerned state constitutionalists in Virginia and Delaware that to preserve the separation-of-power between the branches they immunized their states’ chief executives from impeachment while they were in office.

Provisions in the Virginia and Delaware state constitutions—particularly given the influence of Virginia politicians and experience—would have been known at the time of the drafting of the U.S. Constitution. This experience suggests that without an express limitation of impeachment to current office holders, the text of the U.S. Constitution would not have been read to limit impeachment to the period of a president’s term of office. Further, the impeachment experience in Texas of ex-Governor Ferguson provides an additional reductio ad absurdum to the notion that impeachment should be limited to sitting executives only.

Reader Discussion

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on January 18, 2021 at 10:40:56 am

Rogers talks about "reductio ad absurdum" and then does it to himself.

Here is what he argues: The US Constitution, the text of which limits impeachment to removal from office, nevertheless should be read as authorizing an impeachment trial and conviction by the Senate of a president who is no longer in office because 1) several states were so concerned about political abuse of the impeachment power that their constitutions allow impeachment only after the office-holder is no longer in office, and 2) according to the Wikipedia article for Ferguson and other online articles about his impeachment, Texas Governor James Ferguson was impeached while in office and convicted by the Texas Senate while still in office, but the the judgement of the Texas Senate, which was made while Governor Ferguson was still in office and which convicted Governor Ferguson of nine of the impeachment charges made by the Texas House while Ferguson was in office, was not publicly announced until one day after the Texas Governor, having already been duly impeached and convicted while in office, had resigned from office.

I'll go with Judge Luttig, Professor Dershowitz and (gag!) even Professor Bruce Ackerman on this.

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paladin
on January 18, 2021 at 11:12:15 am

One would think, it only logical to assume, that bringing a charge of Impeachment under false pretenses, is in and of itself grounds for impeachment.

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N.D.
on January 19, 2021 at 07:35:23 am

And doing it twice creates a conclusive presumption of malice, not just stupidity.

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Shadow
on January 18, 2021 at 12:26:53 pm

"Further, the impeachment experience in Texas of ex-Governor Ferguson provides an additional reductio ad absurdum to the notion that impeachment should be limited to sitting executives only."

So, Rogers finally hits one out of the ballpark!
I take it by this that we can now impeach Obama.

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Guttenburgs Press and Brewery
on January 18, 2021 at 14:05:36 pm

How did Rogers "hit one out of the ballpark" when he mangled the historical facts about what actually happened in Texas and the Texas precedent actually involves a governor who was impeached and convicted while in office, not after he resigned, and when Rogers cites as support two states that expressly limited impeachment to out of office?
EVERYTHING Rogers cited, even including the somewhat ambiguous statement by Hamilton that impeachment can be politically abused, undermines at worst or at best fails to support Rogers' assertion that out-of-office impeachment of a president is constitutional. Rogers cites NOTHING in support of his assertion, which, BTW, is also contrary to the US constitution's text and plain public meaning.

If Rogers "hit one out of the ballpark" it was his longest foul ball.

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paladin
on January 18, 2021 at 14:31:28 pm

Well, I didn't specify "which" ballpark. It could have been a kiddie ballpark.
It was a joke, you know.

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Guttenburgs Press and Brewery
on January 18, 2021 at 15:15:46 pm

duh me
sorry

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paladin
on January 18, 2021 at 13:27:54 pm

This issue of "pre-" or "post" impeachment has induced a collective "wedgie" in the legal professoriate with painful professions of constitutional propriety bellowing forth.
One does observe, however, some correlation between "pre" or "post" and whether the professor "dresses" left or right.

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gabe
on January 18, 2021 at 13:34:10 pm

Very helpful to have this persuasive evidence that impeachment is not limited an official's time in office. Hamilton's fear that impeachments might be "regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt" is very a propos. It seems to be assumed that only the accusers would be politically motivated, but we have learned that the defenders likewise can act on the basis of partisan interest rather than innocence or guilt.

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Donald Marshall
on January 18, 2021 at 15:19:34 pm

How did Rogers provide ''persuasive evidence" when he mangled the historical facts about what actually happened in Texas and the Texas precedent actually involves a governor who was impeached and convicted while in office, not after he resigned, and when Rogers cites as support two states that expressly limited impeachment to out of office?
EVERYTHING Rogers cited, even including the somewhat ambiguous statement by Hamilton that impeachment can be politically abused, undermines at worst or at best fails to support Rogers' assertion that out-of-office impeachment of a president is constitutional. Rogers cites NOTHING in support of his assertion, which, BTW, is also contrary to the US constitution's text and plain public meaning.

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paladin
on January 18, 2021 at 13:56:30 pm

Not really persuasive at all:
As i suggested, much depends on how one "dresses".

Here is Art II, Sect 4:

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.

This defines the impeachment power. In short, this IS what impeachment is and can only be. It is not ambiguous.

So, one must ask, is a FORMER President or a former Senator, etc
a) President?
b) civil officer?
Clearly NOT.

From Michael Ramsey, Originalism Blog:

"Further, the common understanding in the post-ratification period and continuing to today is that Article II, Section 4 limits the impeachment power. That is, people understood that only officers (or perhaps former officers) could be impeached only for "high Crimes and Misdemeanors" -- and they understood that this limit arose from Article II, Section 4. For example, in the 1799 impeachment trial of William Blount, the central question was whether Blount (a former Senator) could be tried. And the threshold question there was whether Senators are "Civil Officers of the United States." Blount was acquitted, and the outcome is commonly taken as indicating that Senators are not such officers (and so not subject to impeachment). But this debate and conclusion makes sense only if Article II, Section 4 defines the scope of the impeachment power.

It's true that (very occasionally) the Senate held a trial after a former officer had left office (Blount, plus Secretary of War William Belknap in 1876, and perhaps one or two others). But in each case the principal claim was that the impeachment power attached to the officer when that officer was in office (and thus that the limits of Article II, Section 4 were satisfied). But in any event these are scattered precedents -- by far the more significant precedent is the longstanding assumption that the Senate CANNOT TRY PRIVATE CITIZENS (caps mine) and cannot try people other than for high crimes and misdemeanors.

In sum, my view is that the best reading of the text's original meaning is that Article II, Section 4 defines the impeachment power. It provides a way to remove SITTING (caps mine) officers for specified misconduct. It does not do more than that. Article I, Section 3 adds that the Senate, in removing an officer pursuant to this power, may also impose future disqualification (removal "and" disqualification).

Rogers, incidentally, fails to mention the trial of William Blount which belies his assertion that judicial precedent favors "post" impeachment.

As I say, it may all depend on how one "dresses"

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gabe
on January 18, 2021 at 14:47:41 pm

First and foremost, can we assume, that if evidence is brought forth that can demonstrate that an Impeachment was based upon a false pretense, and said error produced an error in Substantive and thus Procedural Due Process law, making said Impeachment, in essence, null and void- that any party subject to Impeachment, who, with full knowledge that said Impeachment was based upon a false pretense, and thus with malice, proceeded to continue with this counterfeit procedure, can themselves be impeached, in order for Justice to prevail?

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N.D.

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