In my last post, I highlighted the swift impeachment and conviction case of Trump outlined by the unlikely alliance of famed conservative constitutional law scholar Michael Stokes Paulsen and prominent liberals Laurence Tribe and Joshua Matz. However, Senate Majority Leader Mitch McConnell has indicated that the Senate is unlikely to begin a parliamentary impeachment until after Trump’s term ends on Jan. 20.
In this post, I explain why an impeachment process conducted after Trump left office is both constitutional and serves valuable purposes.
I. The constitutional question
Nothing in the text of the Constitution prohibits the indictment and trial of officials who have already resigned. Article II, Section 4 of the Constitution states that “[t]The President, Vice President, and all civil servants of the United States will be removed from office for impeachment and conviction for treason, bribery, or other serious crimes and misdemeanors. “Article I, Section 3, Section 7 states that” The judgment in impeachment cases does not extend beyond impeachment and disqualification from holding and enjoying an honorary, trust, or profit office in the United States. “Note that the latter is a punishment that can even be applied to an officer who is no longer in office.
Michael Paulsen, a leading Conservative legal scholar and academic expert on impeachment, summarizes why it makes sense to interpret this text in such a way that both past and current incumbents can be indicted:
There is a fair argument that the Constitution would allow the impeachment, conviction and disqualification of a former president from future office in order to impose the punishment of disqualification. Impeachment is the only method of removing a president from office, but nothing in the constitutional text literally limits impeachment to the officers present. Moreover, it seems almost absurd to allow an abusive public official to completely thwart the possibility of receiving the constitutionally provided penalty of disqualification from future office by quickly filing a preventive resignation in the hope of resuming office in the future to apply. The power of impeachment therefore extends to former public officials.
As Paulsen notes, this argument is “open to challenge”. Even so, it seems to be better than the opposite view, which would have the “almost absurd” consequences he describes. Another leading expert on impeachment, Michael Gerhardt, also points out that “it certainly doesn’t make sense for presidents who commit misconduct late in their term in office or may be discovered late in their term in office to be immune to the one trial The constitution allows them to be prevented from serving in another federal office or receiving federal pensions. “
This view is also supported by historical precedents. In 1876, President Grant’s Secretary of War, William Belknap, resigned to prevent impeachment for corruption. But the House indicted him anyway, and the Senate tried him. Ultimately, a majority of the senators voted for a condemnation, but not for the necessary two-thirds majority.
Finally, the idea that former officials are subject to impeachment is backed up by extensive evidence with original meaning set forth by Brian Kalt in a thorough 2001 article that probably comes closest to any authoritative academic analysis of the problem.
I’m not suggesting any of this will unequivocally solve the problem. However, the case for the legality of this type of impeachment is strong. And, for practical reasons, it is unlikely that a court will ever invalidate such impeachment as the courts have historically been unwilling to override Congress on impeachment issues. In Nixon v. The United States (1993) (not to be confused with the famous 1974 Nixon Tapes case), the Court even ruled that impeachment issues are “political issues” that are almost entirely out of reach a judicial review.
II. The case for it.
The fact that impeachment would be constitutional after Trump’s departure doesn’t necessarily mean that Congress should actually do it. Some might ask: why bother? After all, Trump will have disappeared from the White House anyway. And impeachment could turn out to be a distraction.
But there will still be two good reasons to proceed with the impeachment even after Trump left the White House on Jan. 20. The first prevents him from holding another federal office in the future.
While recent events have seriously damaged Trump’s reputation, he is still very popular within the Republican Party. If not banned, he could potentially run for president in 2024 and win the nomination again. And as we saw in 2016, a candidate for a large party – no matter how flawed – almost always has a real chance of winning the general election, especially if his opponent has significant political commitments himself. We shouldn’t take the risk of allowing Trump to return to power and commit more crimes and abuses as bad, or perhaps even worse, than those he committed in his first term.
Disqualification would also prevent Trump from doing harm by serving in other positions in the federal government, such as the House of Representatives or the Senate, or being appointed a cabinet member by a future president. Trump is unlikely to seek any of these positions. Better safe than sorry when it comes to such matters.
It seems undemocratic not to keep Trump in office in the future. If people want to vote for Trump (or anyone else) why shouldn’t they? However, thanks to widespread ignorance, party political prejudice, and other factors, voter judgment often has serious flaws. The drafters of the constitution were extremely skeptical of pure majority democracy and imposed many restrictions on it. Impeachment – including the associated power to disqualify – is one of them.
Conservatives who want to remind us that “we are a republic, not a democracy” should be especially careful about rejecting disqualification just because it restricts democracy. This restriction is a feature, not a bug.
The other reason to proceed with impeachment after Trump resigns is to prevent similar abuses of power by future presidents. As I pointed out in earlier writings on impeachment (here and here), too many presidents have got away with serious constitutional violations and gross abuse of power without facing consequences. This problem by no means started with Trump. However, it is imperative that we take action to contain this.
Unless Trump is faced with triggering an attack on the Capitol and pressuring officials to fraudulently reverse an election result, we can expect future presidents to follow suit if they see fit. And maybe even worse.
It may seem unfair to set an example for Trump when several past presidents have got away with violating the Constitution and other abuse of power without facing any consequences. The FDR got away with interning Japanese-Americans in concentration camps, Woodrow Wilson committed massive violations of civil liberties, and – most recently – Barack Obama started two wars without the constitutional approval of Congress. And these are far from the only examples.
But the looser we were on such matters in the past, the more imperative it is to make up for lost time now. If we live in a neighborhood where criminals routinely get away with murder, the right way to deal with the next killer is not to let him go but to impose a heavy sentence to show that the days of impunity for killers are are over. The same is true here. We have to set an example for Trump in part, precisely because we took action against the president’s wrongdoing too early.
After all, the idea that impeachment will be a distraction seems like a weak argument to me. Congress has broad power to structure an impeachment process according to its wishes. And an impeachment and trial that focuses on events where the facts are clear and undeniable doesn’t have to take more than a few days. It could even be done in a step or two – still enough time for both sides to have several hours to present their arguments and evidence.
In a case where there are many hazy facts or an investigation is required, lengthy procedures may be required. But the facts about Trump’s role in the attack on the Capitol and the efforts to put pressure on Georgian officials are already publicly known and visible to all. In addition, full due process is less necessary in a case where the defendant is only threatened with removal from a position of power (or the possibility of being deprived of such a position in the future) than it is in a case where he or she does lose basic human rights such as the right to life, liberty or property (at stake in most ordinary criminal and civil cases).
Even if the impeachment does distract Congress to some extent, the compromise is worth it. Few matters deserve more attention in Congress than deterring wrongdoing by those holding the most powerful office in the country.
As I said earlier, there may be regulatory reasons to avoid impeachment if it seems counterproductive as there is insufficient support from both parties. Subject to this important caveat, there is every reason to re-indict Trump, even if the process cannot be completed until his term has expired.