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01/14/2021

Impeaching Former Presidents
Mike Rappaport

Since everybody seems to be discussing it, I thought I would also chime in on the impeachment of former Presidents question.  Here I assume the reader has read Mike Ramsey’s extremely helpful post.  Needless to say, but sadly very needful in our age, none of this speaks to the desirability of impeaching President Trump or any other former President.    

I had always assumed that former Presidents could be impeached, so perhaps this has influenced my view.  I think this is a hard question, but I continue to lean slightly in that direction.      

As Mike’s post makes clear, there is really no text that speaks clearly to the issue.  But I am very influenced by three considerations.  First, the history appears to be that both England and the early states allowed impeachment of former officials.  This suggests that the power of impeachment extended to former officials.  It is true that the Framers did not necessarily employ the English and early American model.  But to me it is significant that the Constitution departs from the English model in specific ways – most importantly, by limiting the punishments that result from impeachment to removal and disqualification from future office.  Thus, in other ways, it might  seem to follow the English model.   

Second, the provision limiting punishment “in Cases of Impeachment . . . to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”  is also relevant in another way.  It suggests a clear purpose why the Constitution would allow impeachments of former officials – preventing them from serving in the future. 

Third, if disqualifying from future office was thought to be one purpose of impeachment, then it would defeat that purpose if a President could resign before being impeached, just to launch a new bid for the office in the future.

The strongest argument on the other side is supplied by Mike – the fact that the high crimes and misdemeanors standard is in Article II, section 4, which seems to apply only to sitting Presidents, since it only discusses removal.  (“The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”)  This raises the question what is the standard for removing former Presidents.  If this provision does not apply, then the Constitution seems to leave the question unanswered.  As Mike says, “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.” 

One reaction to this argument is to say that it looks like an unintentional feature of the language – the Framers did not intend this result, but produced by oversight.  But I do not think that is good objection to the argument.  We often do not really know the reason for provisions, and if we are to be textualists, we have to take the language seriously.

There is, however, an element of the above objection that is appropriate.  If the Framers thought to prohibit the impeachment of former Presidents, this was a very indirect way of making the point.  Normally, one would expect a more direct statement.  Thus, I do not think Mike's textual argument is as strong as most other textual arguments. 

How, then, to reconcile these conflicting considerations?  I believe that one can find a way to derive the high crimes and misdemeanors standard from the constitutional text.  The explanation, looks to “the power of impeachment.”  If the Constitution did not mention the high crimes and misdemeanors standard at all, then one would have to look at English law to discover what the power of impeachment entailed as to this issue.  It is my understanding that one of the possible standards for impeachment under English law was “high crimes and misdemeanors,” but there were others.  The provision in Article II, section 4, referring to high crimes and misdemeanors, indicates the correct standard and so should apply to all impeachments.  But by itself it does not apply to the impeachment of former Presidents.  Instead, the standard comes from the power of impeachment, and that power is explicated by Article II, section 4.  

This argument is somewhat stronger than simply applying the high crimes and misdemeanors standard to former Presidents without any textual hook.  Instead, it is the combination of the power of impeachment and the reference in Article II, section 4 that does the work.  With this marginal improvement in the textual argument, I believe the considerations in favor of applying impeachment to former Presidents outweigh the considerations in favor of restricting it to sitting Presidents.