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01/16/2021

Convicting Former Presidents
John Vlahoplus

The Constitution is famously short on detail, and its impeachment provisions are no exception.  Read literally, their express terms provide only five rules of procedure and three of punishment.  They do not provide an exhaustive list of who may be impeached and convicted, on what grounds, or when.  They do not expressly or by implication forbid convicting a former president. 

The rules of procedure are that the House has the sole power of impeachment; the Senate has the sole power to try impeachments; Senators shall be sworn or affirmed when trying impeachments; the Chief Justice shall preside over the trial of a President; and conviction requires concurrence of two thirds of the Senators present.

The first rule of punishment is that the President cannot grant reprieves or pardons in cases of impeachment.  The express terms of the other two merely set a cap and a floor on punishment.

Cap:  “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 . . . .”  On its face, this rule is merely a limitation on punishment.  It does not require any.  It allows the Senate to convict but to impose no punishment at all.  It allows the Senate to impose only one of the two specified punishments.  If the presidency is not an office of honor, trust or profit under the United States, for example—as Seth Barrett Tillman argues—the rule allows the Senate to forbid convicted Presidents ever to hold such offices while permitting them to remain in the presidency for the remainder of their term.

Floor:  “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.”  On its face, this rule is merely a floor on punishment.  For specified persons convicted of specified offenses, the Senate loses some of its flexibility over punishment.  The convict shall be removed from office. 

None of these eight rules provides an exhaustive list of persons subject to impeachment.  The President, Vice President and all U.S. civil officers at least are subject.  But the rules do not exclude others. 

None of the rules provides an exhaustive list of the grounds for impeachment.  Specified persons who commit specified offenses must be removed from office.  But there could be other grounds for impeachment, or other persons subject to impeachment, for which or for whom the Senate retains its discretion and only the cap, not the floor, applies.

None of the rules limits when Congress may impeach and convict.  Some people read too much into the floor; they infer from the punishment that the Senate can only convict someone who currently holds one of the specified offices.  But the rule merely provides a minimum punishment for those currently in office who commit certain offenses.  It says nothing about the ability to convict those who no longer hold office, nor about the punishments they face.  For any other rules or limitations on impeachment and conviction, one must look beyond the text, as one always does in constitutional interpretation.  It may be that the grounds for impeachment are limited to treason, bribery, and other high crimes and misdemeanors, and that former officeholders cannot be convicted.  But one must make the case on grounds other than the Constitution’s text.