By: Daniel Melool  | 

The Case For and Against Impeaching Former Officials

This past week was the Senate trial against former president Donald Trump. The House of Representatives voted to impeach the 45th president after they accused him of inciting the riot that occurred at the Capitol on Jan 6. Uniquely, this was the second time President Trump faced a Senate trial. To date, only three presidents have ever been impeached, but Trump is the first to be impeached twice. Ultimately, the Senate voted 57-43 to acquit him. What made this trial even more unique was the fact that Trump was tried although he is no longer the sitting president.

Regardless of where one stands politically, it is certainly true that the latest impeachment trial was unusual. As such, various legal scholars attempted to resolve the question of whether a former official can face an impeachment trial. I take no position on the matter at hand, as both the arguments in favor and against the trial are valid. Instead, I will do my best to convey both sides of this debate.

Before diving into the arguments, it is important to understand the root of the debate. Trump was already impeached. The Senate trial concerned whether to convict him on the charges for which he was impeached and to remove him from office. In the debate, scholars focused on two factors: the text of the Constitution and historical precedents.

Beginning with the text, the main parts of the Constitution that address impeachment are Article I and Article II. The Constitution states in Article II, Section 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.” Some scholars, such as Judge J. Michael Luttig, have argued based on this text that the trial was unconstitutional. The text refers to convicting the president rather than the former president. Furthermore, the text mentions the president in conjunction with the vice president and “all civil officers of the United States.” Read together, the text is referring to convicting officials who are currently serving in government. Since Trump is no longer in office and is now a private citizen, the Senate no longer has the power to convict him.

Other scholars who argued against the Senate trial, like NYU Law Professor Richard A. Epstein, focus on the language the Constitution uses to refer to the president. The aforementioned text refers to “[t]he President” in definite form. This is also true in Article I, Section 3 which requires that “When the President of the United States is tried, the Chief Justice shall preside.” The fact that these texts use definite language indicates that the president being convicted must be the current president in office. After all, nobody refers to former presidents as “the President.” It is only the current president that people speak of with definite language. Furthermore, Epstein’s point was bolstered by the fact that Chief Justice John Roberts did not preside over the trial as is mandated by the text which says that the Chief Justice “shall preside” when the person being tried is the president. Instead, the trial was presided over by Senate President Pro Tempore Patrick Leahy. The Chief Justice’s absence adds to the doubt regarding the constitutionality of the trial.   

So, there you have it, right? Not so fast. Scholars arguing in favor of the trial, like Stanford Law Professor Michael McConnell, point to another clause in Article I, Section 3 that shows the Senate is within its full right to convict Trump: “The Senate shall have the sole power to try all impeachments.” These scholars argue that the key word is “all.” Trump was legitimately impeached by the House of Representatives. Since the clause grants the Senate the power to try “all” impeachments, it matters not that Trump is no longer in office. These scholars agree that the text of Article II, Section 4 appears applicable only to sitting officers. However, it does not grant the Senate’s power to try which comes from Article I, Section 3. The power granted to the Senate to try impeachments is not granted with reservation.

A further argument can be made from another clause in Article I, Section 3 that describes the Senate’s power to conduct an impeachment trial. That clause stipulates that “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.” This clause requires that an official convicted of impeachment must be removed and disqualified from holding office in the future. The argument goes that this clause actually requires the Senate to make two separate decisions: first, it must decide to remove the officer, then it must decide to disqualify them from holding federal office in the future. Historically, the Senate has voted to disqualify only three of the eight officers that it voted to remove. If the vote to remove comes first, the vote to disqualify that follows is necessarily being done to a former official. Therefore, the Senate trial was legitimate. Although it was not able to remove Trump since he is out of office, the Senate could have voted to disqualify him from holding office in the future through an impeachment trial.

Moving to the historical record, it is evident that impeaching a former official is not unprecedented. In 1797, the House voted to impeach Senator William Blount of Tennessee after he was caught taking part in British plot; the Senate subsequently voted to expel him. The Senate then held an impeachment trial after he had been removed from the chamber. There is also the example of Secretary of War William Belknap who was charged with corruption in 1876. The House was set to vote on his impeachment, but Belknap submitted his resignation before the vote could commence. However, the House held the vote anyway, voting in favor of impeachment. The Senate then held a vote to convict him, but no article of impeachment received the necessary two-thirds vote.

Both of these cases certainly lend credence to the trial, but there are points to dispute on each of them. In the case of Blount, the Senate did not believe he could face impeachment charges since he was a legislative officer as opposed to a “civil officer.” As such, the Senate dismissed the case on jurisdictional grounds. Since Blount served in the legislative branch instead of the executive branch, his comparison to Trump is incongruous. The case of Belknap is a better comparison to the latest circumstances, but his case had a similar outcome to that of Blount. Belknap was impeached due to his accepting bribes for contracts, which occurred after he had resigned from office. Nevertheless, jurisdictional questions were again raised in the Senate. Ultimately, none of the articles of impeachment against Belknap received the necessary votes due to doubts about the Senate’s jurisdiction. Notably, Trump was impeached while he was still in office, unlike Belknap who had resigned. Still, the Senate doubted its jurisdiction over a former official.

The latest impeachment trial has certainly caused a stir among both sides of the political aisle. For the first time in history, a former president faced an impeachment trial. Many good arguments were put forth in favor of and against the proceedings. Regardless of where one stands politically, I encourage everyone to carefully consider all the arguments regarding the constitutionality of the latest impeachment proceedings.

Photo Caption: The Capitol building
Photo Credit: Pixabay