Impeachment and Silver Blaze
Andrew Hyman
Arthur Conan Doyle wrote a short story in 1892 titled “The Adventure of Silver Blaze” about the disappearance of a racehorse and the murder of the horse’s trainer. It's not quite incitement to insurrection, but still very relevant to current events. The story is most remembered for this dialogue....
Detective Gregory of Scotland Yard: “Is there any other point to which you would wish to draw my attention?”
Sherlock Holmes: “To the curious incident of the dog in the night-time.”
Detective Gregory of Scotland Yard: “The dog did nothing in the night-time.”
Sherlock Holmes: “That was the curious incident.”
The Constitution says a lot about impeaching incumbent office holders, but is totally silent about impeaching other people. That silence is very curious indeed. It seems like an indication that impeachment is only for incumbents. People who believe impeachment is not just for incumbents ought to describe just how many paragraphs of the Constitution would have to be exclusively devoted to impeaching incumbents, in order to deliver the message that impeaching non-incumbents was not intended.
To get around this conclusion, some people point to the rare situation where an impeached official leaves office before the final vote in the Senate. Actually, that has happened, and the Senate trials of William Blount and William Belknap are briefly described in this excellent Washington Post piece from 2019 (emphasis added):
The House impeached Sen. William Blount of Tennessee in 1797 on treason charges related to land speculation, and the Senate quickly expelled him. Senators held an impeachment trial after expelling Blount, but later acquitted him. President Ulysses S. Grant’s secretary of war, William Belknap, resigned shortly before being impeached by the House for bribery. The Senate nevertheless heard from more than 40 witnesses in his 1876 trial, “as House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office,” according to the Senate Historical Office. Neither precedent really settles the question ... [Frank O. Bowman III of the University of Missouri School of Law] said. The Constitution requires a two-thirds Senate majority to convict an official on impeachment charges, but can a simple majority set a working precedent? “The tricky thing about Belknap is that there are actually two votes at the end of the trial, and one of them was a vote on whether the Senate had jurisdiction in light of the fact that he resigned, and the Senate voted that it did have jurisdiction,” Bowman said. “They voted 37-29 that they had jurisdiction. But on the other hand, then they voted 35-25 for conviction, but that didn’t meet the two-thirds threshold, and one conventional interpretation of that is that many of the senators who voted for acquittal concluded that they lacked jurisdiction. … What does it mean constitutionally? I don’t know.”
I know. It means the general rule is that impeachment by the House and trial by the Senate are for incumbents only, but there may well be a narrowly limited exception that lasts throughout the normal term of office for a person who leaves office early. Assuming President Trump is guilty of a high crime or misdemeanor but does not resign, then the House and Senate are perfectly free to amend their rules so as to quickly impeach and convict him before his term ends, but if they are too slow then they cannot.
If the Senate tries to create a bigger exception than the one in the Blount and Belknap trials, then we would all be in danger of impeachment to prevent us from ever holding office. That would go far beyond Hamilton's cautionary words in Federalist 65 that the subject of impeachment is "the misconduct of public men, or, in other words, from the abuse or violation of some public trust." It would be no less of a disaster for public officials to be subject to impeachment decades after they leave office.
I'm not a fan of manufacturing exceptions to the Constitution years, decades, or even centuries after it was written. In this situation though, I think there's a reasonable argument that the exception was baked into the original document. For instance, the Constitution says about the President, "He shall hold his Office during the Term of four Years." Taken literally, this would bar resigning like Richard Nixon did, but everyone knows as a matter of common sense that it does not mean that (Article II elsewhere discusses “Removal of the President from Office, or of his Death, Resignation, or Inability...”). Given that fuzziness about resignation, it is plausible to infer that a President who resigns his office (or otherwise leaves office early) cannot resign from the possibility of being impeached and convicted during the remainder of his term. If I am mistaken about the effect of resignation (i.e. I am wrong that both the Blount and Belknap trials were constitutional), then impeachment by the House and conviction by the Senate would all have to happen before the president leaves office, or not at all.
FURTHER NOTE BY ANDREW: Blount was a member of Congress, and it may well be that members of Congress are not subject to impeachment. That was a primary reason why he was acquitted by the Senate. If indeed members of Congress are not subject to impeachment, then that would strongly support the idea that non-incumbents are not subject to impeachment either, because the rationale is the same: the Constitution is silent about impeaching them.
MICHAEL RAMSEY ADDS: Former Court of Appeals Judge (and Scalia clerk) Michael Luttig has an op-ed in the Washington Post arguing that impeaching or trying a former President is unconstitutional. It's behind a paywall, but Byron York at the Washington Examiner quotes Judge Luttig on the matter:
"The crux of my argument is that the very purpose of the impeachment power is to remove an incumbent official," Luttig said. "That seems to me to be crystal clear and inescapably true under the text of the Constitution itself."
Also , the National Constitution Center has a good balanced analysis by Scott Bomboy. Here's his description of the Blount precedent that Andrew mentions, which is the only one (that I'm aware of) close enough to the framing to matter to originalists:
Jared Ingersoll, a signer of the Constitution, was one of the attorneys representing Blount at the trial. Ingersoll argued a senator was not a “civil officer” subject to impeachment, unlike the President and other officials. Representative James A. Bayard of Delaware, the House’s lead manager, replied that the considerations for the Northwest Ordinance of 1787 and the Constitution’s plain language made it clear that senators were civil officers subject to impeachment.
Rep. Bayard and Alexander James Dallas, Blount’s other attorney, debated that secondary question. Bayard believed a civil officer could not escape impeachment through resignation. “The party, by resignation or the commission of some offense which merited and occasioned his expulsion, might secure his impunity. This is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong.”
Dallas conceded that argument, but then said Blount had been expelled by the Senate, which was a different matter. “I certainly shall never contend that an officer may first commit an offense and afterwards avoid punishment by resigning his office; but the defendant has been expelled. Can he be removed at one trial and disqualified at another for the same offense?”
In the end, the Senate voted 14 to 11 on January 11, 1799, to dismiss a motion that “William Blount was a civil officer of the United States within the meaning of the Constitution.” It then passed another resolution by a vote of 14–11: “The court is of opinion that the matter alleged in the plea of the defendant is sufficient in law to show that this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed.” Many scholars see this as evidence a senator cannot be impeached, and expulsion by a two-thirds vote is instead the proper remedy, but that was not conclusively stated by the Senate.