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08/14/2022

Michael McConnell: Impeachment and Trial After Officials Leave Office
Michael Ramsey

Michael W. McConnell (Stanford Law School) has posted Impeachment And Trial After Officials Leave Office (Missouri Law Review, forthcoming) (19 pages) on SSRN.  Here is the abstract:

The second impeachment of President Donald J. Trump raised an important and unresolved question: May Presidents and other federal officers be impeached or tried on impeachments after they have left office? Most Democrats argued that former officers can be both impeached and tried; most Republicans argued that former officers can neither be impeached nor tried. This essay argues that both sides in the debate over the Trump impeachment were half right: Only sitting officers may be impeached, but the Senate may try any impeachment no matter whether the officer is out of office.

My thoughts on this question, from way back in January 2021 (seems like ages ago), are here.  I agree with Professor McConnell's first point (that former officers cannot be impeached) for the reasons he states in the article (basically, that the Constitution, Art. II, Sec. 4, says officers -- not former officers -- can be impeached).  I'm less sure about his second point (that the Senate can try impeachments of former officers, so long as they are impeached while in office).