Impeachment and Trial After Officials Leave Office.

• Author: McConnell, Michael W.

TABLE OF CONTENTS TABLE OF CONTENTS 793 I. INTRODUCTION 794 II. MAY THE SENATE TRY AN EX-OFFICER ON AN IMPEACHMENT THAT WAS RENDERED WHILE THE OFFICER WAS STILL IN OFFICE? 797 III. MAY THE HOUSE OF REPRESENTATIVES IMPEACH FORMER OFFICERS AFTER THEY HAVE LEFT OFFICE? 802 A. Text and Structure 803 B. Pre-Constitutional and Drafting History 809 C. Congressional Practice Since 1787 813 IV. CONCLUSION 816 I. INTRODUCTION

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. Trump himself was impeached while still in office and tried - and acquitted - after he left office. This is the sort of question that could easily arise again, in connection with presidents and other officers of either party, and it needs an answer that does not shift with every gust of partisan wind. As Alexander Hamilton warned in The Federalist, No. 65, impeachment proceedings "will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused," and thus there is "always the greatest danger, that the decision will be regulated more by the comparative strengths of parties" than the merits of the case. (1) It is not wise to wait until the heat of the moment to think about these things, or allow structural issues of this sort to be resolved on the basis of case-by-case judgments, which will be heavily influenced by the very passions Hamilton warned against. (2)

The Trump impeachment is not the only time these questions have arisen in recent decades. In the final hours of his second term, President William J. Clinton issued a series of presidential pardons that, to many observers of both political parties, were highly problematic if not out-and-out corrupt. (3) Senator Arlen Specter, a liberal Republican from Pennsylvania who had voted against convicting Clinton on his prior impeachment - and who later switched parties and became a Democrat -suggested impeaching the ex-President. (4) There also were rumblings about a post-presidential impeachment of President George W. Bush for alleged wrongdoing in connection with the treatment of enemy combatants. (5) The issue does not often arise because there is usually little appetite for impeachment after an officer no longer wields power. Richard Nixon avoided impeachment by a timely resignation, but a different Congress might have made the opposite decision: to continue the impeachment process as a deterrent to future presidential misconduct. We cannot assume that the issue will never arise.

In this Article I will argue 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 procedurally proper impeachment even if the officer has left office in the interval between impeachment and trial. Donald Trump's second impeachment trial was therefore entirely legitimate in this respect, because the House passed its Resolution of Impeachment on January 13, 2021, six days before the end of his term, (6) though his trial in the Senate did not begin until February 9.

There is no persuasive argument that the Senate lacks power to try a timely impeachment after the person impeached has left office. Article I states plainly that the Senate has power to try "all impeachments," and there is no textual basis for an exception in the case of former officers. Although an ex-officer can no longer suffer the mandatory punishment of removal, conviction may still bring the discretionary punishment of disqualification from future office; thus, the trial and conviction of an ex-officer carries meaningful consequence. Congressional practice in the centuries since adoption of the Constitution is entirely consistent with this plain meaning interpretation. Although the Senate usually declines to proceed with a removal proceeding after an officer has resigned, it has made clear this is a matter of discretion and not lack of authority. The arguments proffered by then-former President Trump's lawyers and supporters in 2021 were based on the impropriety of impeachments years after the officer had departed from public life, not trials of persons impeached while still in office.

The argument against impeachment of former officers is a slightly closer question, but it also finds a clear answer in the constitutional text. 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.

To be sure, supporters of late impeachment offer a powerful functionalist justification: that late impeachment is necessary to deter misconduct in the final days and hours of a presidency. But opponents of late impeachment have a similarly powerful functionalist counterpoint: that former officers should not be subject to the political harassment of impeachment for the rest of their lives. When functionalist arguments cut both ways, as they often do, it is best to interpret the Constitution according to its text, structure, and history. The question, we should remember, is not what we think would be a good system but what the Constitution actually means. One value of a written Constitution is that it provides a rulebook for resolution of issues that would likely provoke partisan division if decided on the basis of intuitions about good constitutional policy in a particular case.

There is an especially strong functionalist argument for allowing an impeachment proceeding to continue when, like Richard Nixon, the officer resigns to prevent impeachment from taking place. On one occasion in 1876, discussed in greater detail below, the Senate conducted a trial on an impeachment of a cabinet secretary under just those circumstances. (7) That case involved a cabinet officer, Secretary of War Belknap, who resigned just hours before the House voted to impeach him, specifically to avoid the embarrassment. In the Senate, Belknap's defense was based almost entirely on the fact that he was no longer an officer at the time of impeachment. There were two votes on the issue. At the beginning of trial, there was a motion to dismiss, which required a majority vote and was defeated. At the close of trial Belknap was acquitted for lack of a two-thirds vote, largely on the ground that impeachment of an ex-officer is not authorized by the Constitution. In any event, post-resignation impeachment is an arguably special case. A principle of equity holds that a party to a legal proceeding cannot defeat jurisdiction by his own unilateral actions, such as mooting the case. Especially given its ambiguous outcome, this single incident of a post-resignation impeachment is insufficient to warrant a general rule that former officers are impeachable after they have left office.

2. MAY THE SENATE TRY AN EX-OFFICER ON AN IMPEACHMENT THAT WAS RENDERED WHILE THE OFFICER WAS STILL IN OFFICE?

   Forty-five senators voted to dismiss the second Trump impeachment before trial, on a point of order. (8) The point of order, raised by Senator Rand Paul, was worded as follows: "that this proceeding, which would try a private citizen and not a President, a Vice President, or civil officer, violates the Constitution and is not in order." (9) Quoting Article II, Section 4 and the second sentence of Article I, Section 3, Clause 6, Senator Paul explained the basis for his motion: "As of noon last Wednesday, Donald Trump holds none of the positions listed in the Constitution. He is a private citizen. The Presiding Officer is not the Chief Justice, nor does he claim to be. His presence in the Chief Justice's absence demonstrates that this is not a trial of the President but of a private citizen." (10)

   The problem with Senator Paul's argument is that it confuses impeachment with trial. It may very well be that the House of Representatives can only impeach the officers listed in Article II, Section 4, namely the President, Vice President, and other civil officers--and not private citizens, including ex-Presidents. But on January 13, 2021, the day the House voted to impeach him, Donald Trump was President of the United States, and fully subject to impeachment. There is no doubt, therefore, that the impeachment itself was timely. The question was whether the Senate could try the impeachment. The answer to that question is found in the first sentence of Article I, Section 3, Clause 6, which Senator Paul omitted to quote. That sentence reads: "The Senate shall have the sole power to try all Impeachments." As that sentence makes clear, the Senate has power to try not just some impeachments but "all" impeachments--presumably meaning all jurisdictionally proper impeachments, which the Trump impeachment was. Article I contains no hint of an implied limitation to cases where the officer is still in office at the time of trial. True, if the January 13 impeachment had been jurisdictionally improper, it would be reasonable for senators to say that it was not truly an "impeachment" within the meaning of the Constitution, and therefore that it should be dismissed. But given that the January 13 impeachment was procedurally impeccable - at least with respect to the late impeachment issue - it is inescapable that the Senate had power to try it. The relevant constitutional text is unambiguous.

   That Chief Justice Roberts did not preside is...