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01/11/2021

Can an Ex-President Be Impeached?
Michael Ramsey

My first intuition was "no" based on the common paraphrase of the Constitution as saying that the President can be impeached for high crimes and misdemeanors; an ex-President is not a President.  But that's not what the Constitution says.  Here are the relevant clauses:

Art. 1, Sec. 2:  "The House of Representatives ... shall have the sole Power of Impeachment."  This text on its face does not limit the impeachment power to sitting Presidents.

Art, II, Sec. 4: "The President ... shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."  This text is limited to "The President," excluding ex-Presidents - of course, because it relates to removal from office.  But it does not directly say anything about impeachments leading to other penalties.

Art. I, Sec. 3, para. 5:  "The Senate shall have the sole Power to try all Impeachments."  No limit here.

Art. I, Sec. 3, para. 6:  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 text seems ambiguous.  Perhaps it means that the judgment can include only removal from office plus future disqualification, implying that impeachment is only appropriate where the person can be removed from office.  And obviously holding an office is a prerequisite to being removed.  Read this way, it means no impeachments of ex-Presidents.  But maybe the "and" in the text is actually partly disjunctive: the judgment can include removal from office and/or future disqualification.  In that case, impeachment of ex-Presidents is fine.

There's a bigger textual puzzle lurking, however.  If ex-office holders can be impeached, what can they be impeached for?  The immediate response is: high crimes and misdemeanors, of course.  But no so fast.  That limit comes from Article II, Section 4.  And Article II, Section 4 only relates to removal from office (see above).  If Congress can impeach people without removing them from office (because they are ex-officers), there doesn't seem to be any textual limit on the grounds for such impeachments.

That seems an implausible result.  Perhaps, then, the lack of limitation on non-removal impeachments implies that ex-Presidents (and other ex-officers) can't be impeached, because it was assumed that impeachment convictions would always involve removal from office.  Otherwise, the framers would have put the high crimes and misdemeanors limit somewhere else, to cover non-removal impeachments.  So on this reasoning, my initial intuition is correct (but it's a harder argument).

That's also a lot to squeeze out of the text.  Originalist materials might help confirm or reject it.  I'm not aware of any discussion of this point (or practice) around the time of the founding (though there may have been some).  Background assumptions might also be an important part of an originalist analysis.  English practice included impeachment of former officers (see this article by Brian Kalt), which could suggest that the Framers assumed impeachment under the Constitution also included such a procedure.  But even that is not assured: the English system might well have included impeachment of ex-officers because it contemplated more serious punishments (including execution!).  The framers deliberately cut back on that English practice in Article I, Sec. 3, para, 6 (limiting penalties to removal and disqualification).  So maybe they cut back on other English impeachment practices too.

In sum, this seems like a hard question.  Glad I don't have to answer it.

RELATED:  At The Bulwark, originalist impeachment scholar Michael Stokes Paulsen touches on this issue in The Constitutional and Moral Imperative of Immediate Impeachment:

There is a fair argument that the Constitution would permit impeachment, conviction and disqualification from future office even of a former president, in order to impose the punishment of disqualification. Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future. The impeachment power thus arguably extends to former officeholders. [He goes on to say "But that argument is contestable" and calls for a quick impeachment/trial instead.] 

I largely agree with his textual point, per the discussion above.  His policy argument cloaked as an absurdity argument works less well.  Maybe the framers thought impeachment of former officers would be necessary to prevent preemptive resignations, but maybe they thought a resignation would largely accomplish the main desired result.

Also, the post assumes that the presidency is an "Office of honor, Trust, or Profit under the United States," but is it?  See here from Seth Barrett Tillman.

A FINAL POINT: Textually, if an ex-President is tried in the Senate, the Chief Justice does not preside.  Per Article I, Sec. 3, para. 5, the Chief Justice presides only "when the President of the United States is tried."  The ex-President is not the President.

UPDATE:  At the Epoch Times, Alan Dershowitz says ex-Presidents can't be impeached (via Instapundit). But I did not feel like signing in to find out why.

At Volokh Conspiracy, Ilya Somin takes the opposite view.