Impeaching a Former President Is Plainly Constitutional

Posted in: Constitutional Law

Two days ago, all but five of the fifty sitting Republican United States Senators voted to dismiss the House’s second impeachment of Donald Trump, relying on the nakedly dishonest argument that the Constitution does not allow former federal officials to be impeached and tried by Congress. That Republican ploy was a travesty, and it is good that it failed.

Many scholars and commentators have already weighed in on the Republicans’ argument, and the overwhelming weight of opinion is that there is no constitutional bar to impeaching or trying a former president. One particularly good op-ed discussing this question was penned by Professor Laurence Tribe, who forcefully responded to a contrarian (or, more accurately, a crankish) view that had been advanced by a retired federal judge.

As Tribe and others have shown, all of the ways in which we understand and interpret the Constitution lead to the conclusion that Trump can be convicted after a Senate impeachment trial. Notably, for example, there is ample evidence that the framers’ original view of the impeachment power certainly extended to post-term impeachments and trials.

Here, I want to offer an even more basic argument to explain why the Constitution unquestionably allows impeachments in the current context. The constitutional text itself makes it abundantly clear that there is no barrier to trying Trump next month—or later this year, or any time at all.

Allow me to be blunt: One need not even look at the historical context, the canons of construction, or any parade of horribles that will soon be on the march if we do not hold a trial, as persuasive and legally sufficient as those arguments might be. The words of the Constitution itself make clear that what Democrats are doing is fully legitimate.

Textualism Is Not Always Dispositive, But It Is Absolutely Clear Here

Article II, Section 4 of the Constitution provides: “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.” According to Republicans, this means that Congress cannot impeach or convict a former president, because he is not the President. By virtue of the fact that he is no longer in office and cannot be removed, they say, he cannot be impeached or convicted in the first place.

I will turn to a related constitutional provision that puts this matter in full context in a moment, but imagine first that the words above were the only relevant constitutional directive on the question at hand. What does the Constitution say, simply as a matter of text? It says that, “on Impeachment … and Conviction,” a president shall be removed from office. What it does not say, however—what it does not even come close to saying—is that the House and Senate may not pursue the impeachment and conviction of someone who is no longer in office. It says only that if they do so against a sitting president, a convicted miscreant shall be removed from office. If that person is already out of office, then removal is obviously unnecessary.

Again, remember that Article II, Section 4 only applies to “The President, Vice President and all civil Officers.” That only means that when any of those people is impeached and convicted, he shall be removed from office. It says nothing about what to do about anyone else who has been impeached, such as a former president.

There is no way to read those words as a prohibition on trying and convicting ex-presidents (or other impeachable officials). Imagine an anti-burglary law requiring that ex-felons be sentenced to longer terms than first-time offenders. Such a law could not be held somehow to mean that first-time offenders cannot be convicted of burglary. It merely means that a particular consequence shall apply to one category of offenders and not to others.

As far as the Constitution tells us, Congress could impeach anyone it wants, anytime it wants. Again, the only thing that Article II, Section 4 tells us is that if a person is convicted and is currently holding office, then he shall be removed. Republicans want to rewrite that provision to say that the only time that Congress can hold impeachment proceedings is when a president is still in office, but that is not what the provision says.

To summarize the point as simply as possible, the Constitution says that a sitting president, if he is impeached and convicted, shall be removed from office. Republicans read those words and draw this conclusion: “Only sitting presidents may be impeached and convicted.” The correct conclusion, however, is actually obvious to the point of being trivial: “If a former president is impeached and convicted, he obviously need not be removed from office.”

Indeed, we can think of impeaching and trying a former president—even if there were no immediate action that could be taken against him upon conviction—as a crucially important “sense of Congress” resolution. That is, they could be saying: “This traitor left office before we had a chance to throw him out, but it is important that we follow the process that we would have followed had he still been in the White House. Because we do this now, we announce to the world that what this man did was a violation of his oath, and it cannot happen again. Any sitting president who does such a thing in the future will be removed from office. This man, even though he is already gone, merits being known as an impeached and convicted former president.”

Disqualification from Future Office Slams the Case Shut

As I stipulated above, this analysis accepts arguendo that there are no other consequences to having been convicted after a Senate impeachment trial. Again, by its own terms, the text of Article II, Section 4 merely says that, if Congress impeaches and convicts, someone who can be removed shall be removed. At best, the text would have to be tortured to say that the founders must have assumed that only current officeholders would be impeached and convicted, because they added a provision that applies to current officeholders. But as described above, that is not how language or logic works.

More obviously, the assumption that there are no other consequences for being impeached and convicted is simply false. As Professor Tribe (in the op-ed that I referenced above) and many others have pointed out, Section 3 of Article I specifies that “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.”

In other words, the Constitution says two things about impeachment: current officeholders shall be removed, and anyone convicted can be disqualified from holding office in the future. Again, that text in no way means that former officeholders cannot be impeached.

Consider another analogy. Suppose that a state’s drunk driving law were to say that, upon being convicted of driving while intoxicated, the driver shall lose his license and be prohibited from driving in the state for the next ten years. A person who was driving drunk and without a valid driver’s license would obviously not be able to say: “Sorry, I don’t have a driver’s license for you to revoke, so you can’t do anything to me!”

In short, one need not appeal to anything extraneous to the text itself to conclude that the two relevant provisions of the Constitution in no way shield a former president from an impeachment trial. That document tells us what happens to sitting presidents, and it also tells us what can happen to former presidents. It does not limit who can be a defendant, or when he can be impeached and tried.

The Political Calculations of Impeachment

With the legal issue so easily resolved by direct reference to the text itself, it might also be helpful to think about two ancillary issues. First, it is hard to disagree with the assessment of two Washington Post reporters, who surmised that the impeachment “proceedings are likely to end with Trump’s acquittal on the charge that he incited the Jan. 6 Capitol riot.” Even so, allow me to offer at least two ways in which Tuesday’s vote might not inevitably lead to that unfortunate outcome. To be clear, I do not believe that these explanations actually apply to any of the 45 who voted to dismiss, but it is worth thinking about them anyway.

Every Republican knew on Tuesday that every Democrat (including, if necessary, Vice President Harris) would vote against the dismissal motion. They also knew that five of their Republican colleagues would also vote no, meaning that it would not even be a close vote. If a particular Republican senator were inclined to vote to convict Trump—or even if a Republican’s mind is not yet made up—he might still comfortably vote against the dismissal. Even if he thought that the dismissal motion was misguided, he knew that it was going to fail, so why not keep one’s powder dry?

This is not particularly courageous, to say the least, but one could imagine a senator thinking that he could protect himself from the predictable harassment and possible violence from Trump’s fanatical followers that has been visited on other Republicans. When the time comes for a vote that truly matters, however, this senator might yet find his inner patriot.

It is also possible that a Republican senator could honestly believe that holding a trial is unconstitutional—a completely baseless view, as noted above, but still one that a Republican senator might erroneously hold—but when the trial is actually held, he could accept having lost the threshold issue and then be convinced of Trump’s guilt after hearing all of the evidence and arguments.

In short, it is not a certainty that Tuesday’s vote has revealed the thinking of all 50 Republicans in the Senate. Maybe another 12 votes could be found to convict Trump. (Of course, the converse could also be true, that is, perhaps some Democrats or any of the five Republicans who approved holding the trial might vote to acquit, when all is said and done.)

As noted above, however, I see little reason to hold out hope that any real-world Republican senator actually believes any of the things that I have described here, much less that twelve of them do. As a practical matter, then, Trump seems unlikely to be convicted by the two-thirds majority that the Constitution requires.

Republicans’ Sudden Rediscovery of Procedural Tricks

The second ancillary issue concerns Republicans’ on-again/off-again love affair with legal technicalities. The party that has no problem subjecting people to the death penalty based on procedural matters (a desire for judicial finality, a defendant having missed deadlines for filing appeals, and so on) somehow cannot decide how it feels about legal niceties when it comes to Donald Trump.

One of the smaller lies within the Big Lie that is Trump’s “stolen election” myth holds that the dozens of legal defeats that rained down on Trump’s lawyers after the election were all merely procedural. For example, in a recent Verdict column, I debunked Senator Josh Hawley’s contrived claim that the Pennsylvania Supreme Court never really ruled on the legality of that state’s mail-in voting law (a law that was passed overwhelmingly in both Republican-dominated houses of that state’s legislature).

Many of Trump’s Senate enablers have made similar arguments about the U.S. Supreme Court’s rulings against Trump, saying that the cases were dismissed due to mere procedural excuses. Even setting aside the pure hypocrisy of American conservatives complaining about lawsuits being tossed on non-merits grounds, this is simply nonsense.

For example, when the U.S. Supreme Court ruled against the challenge filed by the Attorney General from Texas (joined, shockingly, by another seventeen states’ attorneys general), the justices’ stated reason for denying relief was that Texas lacked standing. They explained, however, that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

Just as the Pennsylvania Supreme Court would have had the legal right to reach the merits in its case but saw no reason to do so, the United States Supreme Court announced that the reason that Texas lacked standing was that the relief requested is not recognized by the Constitution. This was, then, in a deep sense a merits-based ruling: “You lose, because you’re arguing that one state can tell another state how to run its elections, which is simply not true under our federal system. Such a claim has no standing in this court.”

On Tuesday, however, Republicans in the Senate actually tried to make it impossible to reach the merits of the case against Trump. Not wanting to have to admit publicly that what Trump did was unacceptable—or to openly disgrace themselves by giving him a pass—they instead tried to say, “We can’t do anything about this, because the Constitution won’t let us.” And Republicans would have done this even though—unlike Trump’s blizzard of baseless lawsuits in November and December—there truly is no other venue than the United States Senate to impose the consequences on Trump that the Constitution and justice require.

The Other Reasons to Proceed Are All Important

By focusing in the first part of this column on a purely textual analysis, I in no way mean to diminish or question the many other excellent arguments that easily rebut the recent gambit by Senate Republicans. In particular, Professor Tribe reminds us: “Focusing on the purposes of the impeachment power yields the same conclusion. Its function is prospective rather than punitive: to prevent officers who have betrayed their oaths from committing further abuses and thereby inflicting future harm.”

Whether looking at text, precedent, original meaning, or purpose, the impeachment power applies with full force to Donald Trump today. The Senate should hold its trial and reach the appropriate verdict based on the facts and the law. To do otherwise would allow presidents to escape consequences merely by timing their depredations strategically. That cannot be what our Constitution permits or what we as a nation tolerate.

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