A Comment on Michael McConnell's “Impeachment and Trial After Officials Leave Office”Andrew Hyman

There is a lot to admire in Professor McConnell’s new manuscript on impeachment which was recently mentioned on this blog.  As scholarly and meticulous as it is, though, I would like to point out what seems to me a significant counterargument that the manuscript does not address.

First, a point of agreement, I agree 100% with this statement by Professor McConnell about Article II, Section 4:

Article II provides for impeachment of “the President, the Vice President, and other civil officers.”  To read this provision as allowing impeachment of ex-officers requires either that we interpret the term “civil officers” as embracing former officers, which is not what those words ordinarily mean, or that we treat the list of impeachable persons as non-exclusive, which would have extraordinary consequences inconsistent with both the drafting history and the weight of subsequent practice.

Article II, Section 4 says the following, of course:

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.

But, it is perplexing to me why Professor McConnell thinks that only the impeachment accusation --- and not the conviction --- applies exclusively to incumbent officeholders; conviction and impeachment are treated textually in much the same way in this blockquote, so it seems counterintuitive to think that one can apply to ex-officers while the other cannot.  This conclusion of mine gains added traction if we plug the definition of impeachment (from McConnell’s footnote 21) into Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on accusation and prosecution for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

If the accusation must be preferred against an incumbent officer, then why not the prosecution too?  Professor McConnell is applying Article II, Section 4 very differently as between impeachment and conviction, and also very differently as between the two stages of impeachment (i.e. accusation and prosecution).  This all seems counterintuitive, and it’s much more likely that they should all be limited to incumbent office-holders or none of them should; there’s no textual reason to single out the accusation alone, for special treatment in this regard.  If I am reading Article II, Section 4 correctly, then the House loses its power to continue with an impeachment if and when the impeached person leaves office, just as though the person died.  The charges must be dropped, and the House managers go home.  Although the Senate does have power to try all impeachments, there is no impeachment left to try, if the charges are dropped.

People nowadays often speak of a person being impeached when the House passes an impeachment resolution, or when the articles of impeachment are delivered to the Senate, but that is not the original meaning of impeachment. Professor McConnell acknowledges this in his footnote 21 where impeachment is described as an extended process rather than a discrete event.  This is confirmed yet again by Federalist 65, where Alexander Hamilton repeatedly refers to the accusation not as an “impeachment” but rather as “preferring the impeachment.”  Impeaching someone and preferring an impeachment were not the same thing in the 1780s, but that is how Professor McConnell treats them (except in his footnote 21).

Policy-wise, I don’t really care.  This type of situation rarely occurs.  Although Professor McConnell mentions the suspicious pardons given by President Clinton at the end of his second term, Clinton was already term-limited, so any disqualification would have only prevented him from holding lower-level office, which ex-Presidents have very rarely done (I think President Truman put ex-President Hoover to work in Europe after WWII). Professor McConnell also mentions President G.W. Bush, but he was term-limited too.  Immunity from further impeachment also seems like a useful incentive for sketchy officials to hurry up and leave their offices, as Professor Michael Ramsey has pointed out at this blog, kind of like a plea bargain.