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08/31/2020

Harold J. Krent: Can President Trump Be Impeached As Mr. Trump?
Michael Ramsey

Harold J. Krent (Chicago-Kent College of Law) has posted Can President Trump Be Impeached As Mr. Trump? Exploring the Temporal Dimension of Impeachments [abstract only] (Chicago-Kent Law Review, Vol. 95, No. 3, 2020) on SSRN.  Here is the abstract:

Can Congress impeach and convict an officer such as President Trump after he has left office? Most academics considering the issue have concluded that the removal of an executive branch officer or judge from office does not defeat Congress’s jurisdiction to impeach and try the officer. They reason that, even when an officer is no longer in “office,” the House may still impeach and the Senate convict in order to disqualify the individual from serving in public office in the future. Members of Congress tried to galvanize support to impeach both President Clinton and President George W. Bush after they left office.

Although the constitutional language is far from clear, Parliament exercised a continuous power of impeachment prior to the Founding, and many of the newly independent states followed in that tradition. Moreover, on at least one occasion, the House and Senate debated the propriety of continuing the impeachment process after an officer was no longer in office and, in that case, the House impeached and the Senate voted to acquit, but by a slim margin. Nonetheless, I argue that Congress’s impeachment authority is best understood as a weapon of last resort to remove an officer from a position of public power, and that the concomitant power to disqualify an officer from future service does not transform the impeachment remedy into a potential Sword of Damocles hanging over the head of officers for the rest of their lives. Otherwise, the impeachment power would resemble a Bill of Attainder and could be used as a tool to punish opponents of a sitting Congress as well as disqualify leading opposition party candidates who previously had served in offices of public trust from participating in federal politics in the future.

An interesting question, but if the historical power of impeachment extended to former officers under the English system, I don't see why that scope wouldn't carry over to the constitutional power -- unless something in the text says otherwise, which it doesn't.  The Constitution's check on the impeachment power is that (Art. I, Sec. 3) it extends only to removal from office and disqualification from future office.  Art. II, Sec. 4 says that the President, Vice President and all civil officers who are impeached and convicted shall be removed from office, but it doesn't say who may be disqualified from future office.  So I wouldn't read it as limiting the impeachment power; rather, it confirms Art. I, Section 3's indication that the impeachment power encompasses removal from office (in particular, it confirms it as to the President, who absent Art. II, Sec. 4 might argue otherwise based on an analogy to the monarch, who obviously wasn't subject to removal).