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02/02/2021

Definitely my Last Post on Impeachment Trials of Ex-Presidents
Michael Ramsey

Here's a non-comprehensive roundup of recent commentary on the matter of impeaching ex-Presidents (beyond what we've already discussed).  I think the issue is thoroughly beaten into the ground at this point.  I'll try to avoid having any further thoughts.

In Newsweek, Eugene Kontorovich: The Constitutional Case Against Retroactive Impeachment.

In the Washington Examiner, Senator Mike Lee:  The Constitution does not authorize a general impeachment power.

At Volokh Conspiracy, Brian Kalt responds to Senator Lee here (scroll down).

At the Daily Caller, a debate between Steven Calabresi (pro) and Scott Gerber (con).

At Bloomberg, Cass Sunstein; Can Ex-Presidents Be Impeached? No. Convicted? Yes.

To me, one telling weakness of the pro-impeachment-trial side is its harping on the obscure 1876 episode of William Belknap, the Grant administration Secretary of War who was impeached, and then tried for bribery after resigning his office -- and acquitted (though obviously guilty).  Professor Kontorovich rightly pummels this argument in the post linked above: 

Supporters of after-office impeachment have attempted to point to historical precedents—but there are no such precedents. In the 230-year history of the U.S. Constitution, there have been zero impeachments or trials of former presidents, and only one of any former "civil officer"—145 years ago.

Historical practice can be a guide to understanding the Constitution, but the Supreme Court has held that it takes a lot more than an isolated historical episode to show that something is constitutionally acceptable. Moreover, there is no reason to ignore the glaring lack of impeachments of the countless former office holders who may have deserved it. Indeed, since government officials spend more time out of office than in it, if subsequent impeachment were constitutional, one would expect to see it more often than impeachment of sitting officials.

One advantage of originalism is that it makes categorically clear that events like the Belknap episode are simply irrelevant to finding constitutional meaning. Occurring almost 90 years after ratification, it has nothing to say about how people in the founding era read the constitutional language.  An isolated incident 145 years in our past, it does nothing to establish a set of  extra-judicial precedents that would justify departing from the original meaning (even assuming, as I might, that extra-judicial precedents can sometimes have this effect).

Even under non-originalism's all-things-considered approach, I doubt many people would want to argue, as a general matter, that a single late-nineteenth-century event driven by partisan politics should count for much.  But nonoriginalism sets nothing categorically off limits, so in a time of need one may reach for anything.