At Volokh Conspiracy, Michael McConnell (guest blogging): Impeaching Officials While They're in Office, but Trying Them After They Leave. From the core of the argument:
Whether a former officer can be impeached is beside the point. Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible (putting aside any disagreements over the nature of the charges).
Article I, Section 3, Clause 6, states: "The Senate shall have the sole Power to try all Impeachments." The key word is "all." This clause contains no reservation or limitation. It does not say "the Senate has power to try impeachments against sitting officers." Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.
Article II, Section 4, states: "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." This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.
I think this is a powerful argument, more persuasive than others that claim broader impeachment power. I have two responses.
First, the post assumes the impeachment was completed when the House voted to approve the article of impeachment. But that does not appear to be correct as a matter of original meaning. As discussed here and here, impeachment in its original sense meant the delivery of the articles of impeachment. As I put it in the second linked post:
[A]s argued by Andrew Hyman on this blog, and by Noah Feldman at Bloomberg (and elaborated by Keith Whittington at Volokh Conspiracy), historical understanding and practice strongly indicate that a President is not impeached (under the Constitution's original meaning) until the Articles of Impeachment are delivered to the Senate. Impeachment, in this view, is not the act of voting on the articles, but rather the act of making an accusation to the entity having trial authority (in this case, the Senate).
From Professor Whittington's post:
When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.
Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:
Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.
The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.
This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who
In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.
Professor Whittington goes on to note that the terminology changed in the 20th century, so that people began to speak of impeachment occurring upon the House's vote. But the original meaning seems clearly to the contrary. Thus in an originalist analysis, even if Professor McConnell is right about the Senate's trial power, that does not affect the outcome in the particular case, because President Trump was impeached, for constitutional purposes, after he left office.
Second, I don't find Professor McConnell's argument on the Senate's power is as conclusive as he thinks it is. He says: "I have not seen any answer to this textual point from those who think the trial of Mr. Trump would be unconstitutional. They ignore ... the text of Article I, Section 3, Clause 6, which states that the Senate may try 'all' impeachments." But I think there is a textual counterargument, which I and others have made: Article II, Section 4 defines the scope of the impeachment process (including the trial as well as the impeachment itself), and so qualifies Article 1, Section 3. Philip Bobbitt makes this point in a recent post at Lawfare, Why the Senate Shouldn’t Hold a Late Impeachment Trial:
Article II, Section 4 provides the substantive standard of law that governs impeachment. It states that “[t]he 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.”
Article I, Section 2 provides the procedural authority for impeachments. Clause 5 states that “the House of Representatives … shall have the sole Power of Impeachment.” Clause 6 states that “[t]he Senate shall have the sole Power to try all Impeachments. … And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Clause 7 limits the penalties that can be levied as a consequence of conviction: “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” and qualifies this limitation by adding, “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
There is no authority granted to Congress to impeach and convict persons who are not “civil officers of the United States.”
Third, Professor McConnell's approach seems attractive because it's limited to trials of ex-officers who are impeached while in office. But I don't see any textual basis for this limitation. Why would he think the House can't impeach a former officer? It can only be because of Article II, Section 4 (limiting impeachments to current officers). But if Article II, Section 4 limits the impeachment to current officers, it should also limit conviction to current officers, as it combines impeachment and conviction in the same clause of the same sentence. Thus Professor McConnell's limited position is not actually textually tenable. Inevitably, he would have to argue that Article II, Section 4 provides no limit on impeachment or conviction. Professor Bobbitt makes this counterargument as well:
The interpretation that persons are subject to impeachment and conviction even if they are not civil officers would greatly expand the Senate’s ability to prevent future office-holding. The argument for doing so depends on the claim that disqualification is an alternative, stand-alone penalty rather than one supplementary to removal. (Obviously a former officer who is no longer in office cannot be removed.) The paradigm case is one in which an official is impeached while in office but then tried by the Senate after he or she leaves. Nevertheless, under the “alternative penalty” rationale, once removal is irrelevant, any person who was once a civil officer might be impeached and convicted and by this means disqualified from any future office.
Professor McConnell is among the very best originalist scholars in the nation and I hesitate to disagree with him on anything, but ultimately I am not persuaded on this point. I think either the impeachment/conviction power is defined by Article II, Section 4, or it is essentially unlimited (except as to the nature of the punishment).
UPDATE: Professor McConnell responds to the first point at Volokh Conspiracy, here.
ANDREW HYMAN adds: Even in the unlikely event that Professor McConnell is right about impeachment starting before the articles were delivered to the Senate, clearly the impeachment was not completed before delivering the articles to the Senate. Impeachment is an extended process that includes both accusation and prosecution, and McConnell has not shown, nor can show, that the House has power to complete an impeachment merely because it had power to start the impeachment. See my earlier post here. It would be like saying that President Trump now has power to complete the border wall because he had power to start the border wall.