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01/28/2021

Further Thoughts on Impeaching Ex-Presidents
Michael Ramsey

Without trying to be comprehensive, here are more discussions of the issue, which has become of much more than just academic interest.

At the National Constitution Center, Jeffrey Rosen moderated a discussion with Judge Michael Luttig and Keith Whittington.  Professor Whittington also had this op-ed in the Wall Street Journal: Yes, the Senate Can Try Trump -- Impeachment for former officials was the norm at the time of the founding.  And, via Ilya Somin at Volokh Conspiracy, here is a statement by Constitutional Law Scholars on Impeaching Former Officers (signed by some notable originalist scholars including Steven Calabresi and Michael Stokes Paulsen), concluding that such trials are permissible.

On the other side, in National Review, Robert Delahunty (St. Thomas) and John Yoo (Berkeley): The Originalist Case against a Trump Impeachment Trial.  This part is similar to what I've argued: 

Article II of the Constitution declares that “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.” Impeaching a former official flatly contradicts this wording. After January 20, Trump no longer qualifies as an “Officer of the United States,” and the sentence of removal cannot apply to someone who is no longer in office. 

...

Supporters of Trump’s impeachment must make heavy inferences from ... Article I, Section 3’s “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.” Trump critics argue that by including future disqualification, the Founders intended impeachment to extend to former officials. But it is not clear from this text whether disqualification must accompany removal (notice the “and” before “disqualification”), or whether it constitutes an independent and separate penalty.

Trump’s critics must rely on a power of impeachment outside the pure confines of the constitutional text. They must argue that when Article II prescribes removal as punishment for “the President, Vice President, and all civil Officers of the United States,” it only describes the standard that applies, and the punishments available, to existing officers — but not former ones. ...

Any originalist should recognize the faults of this non-textual approach. It contains within itself no limiting principle as to time or targets or terms. If Article II only describes the punishments due to current officers, but does not define other targets of impeachment, then impeachment can include all former executive officers and judges. Congress could impeach Jimmy Carter for the failed Iran hostage rescue operation or Barack Obama for refusing to enforce the immigration laws. It could impeach any former cabinet officer too; it could charge Hillary Clinton for failure to safeguard classified information or James Comey for provoking the Russia special counsel investigation.

Even more worrisome, this theory means that Congress need not limit its scope to federal officials, either present or past. Impeachment could target private citizens who had never held public office — as had occurred in Great Britain in the centuries before the Constitution — or state and local officials. If we adopted British practice before the ratification of the Constitution, Congress could even impose punishments beyond removal or disqualification too, so long as the defendants were not current office holders. ...

I have one further thought.  A centerpiece of the pro-impeachment side is the supposed oddity of allowing disqualification of sitting officers but not allowing disqualification of former officers.  I've given some responses to this already, but I think there's a further one.  

I assume that a sitting officer can be impeached, convicted and removed from office for a high crime of misdemeanor which that officer committed in a previous office.  (That is, hypothetically, President Biden can be impeached for something he did as Vice President).  Assuming that's right (and I see no immediate reason why it isn't), then there's an obvious reason to disqualify an impeached sitting officer from a future office.  Having gone through impeachment, trial and conviction once, it would be wasteful and duplicative for Congress to go through the process again, should the officer gain a new office.  But as to a former officer, with no imperative to remove the officer from a current office, impeachment can be invoked when and if the officer gains a new office.  There wouldn't be a need for disqualification to avoid a duplicative process (and impeachment would be avoided entirely if the former officer never gained a new office).

Of course, there are policy arguments for the other side as well.  Anticipatory disqualification might be a good idea to keep a former misbehaving officer from seeking a new office.  And disqualification of a former officer might make a statement about the wrongfulness of the officer's conduct.  My point, though, is that it's not absurd to treat sitting officers and former officers differently with respect to disqualification.  Thus we shouldn't strain the text to avoid that result.