IS TRUMP'S SECOND IMPEACHMENT UNCONSTITUTIONAL?

President Trump was impeached by the House of Representatives on December 18th, 2019, based on allegations stemming from a phone call with the Ukraine.  Less than 2 months later, on February 5th, 2020, the Senate acquitted Donald Trump.  Fast forward less than 1 year, and we have the unprecedented second impeachment of a sitting US President.  This time former President Trump was impeached by the House less than 1 week before he left office, with a Senate trial not scheduled to begin until well after the ultimately peaceful transfer of power to the Biden administration. This impeachment raises the question: Can a president be impeached after leaving office?

Where Does Impeachment Power Come From?

The power to impeach is derived from Article II, Section 4 of the US Constitution.  This section grants Congress the authority to remove the President, Vice President, and all civil officers of the United States from their stations for treason, bribery, or other high crimes and misdemeanors.  As the many who followed Trump’s first impeachment are aware, the impeachment process is broken down into two phases.  First, the House of Representatives must vote for impeachment, thereby formally alleging wrongdoing amounting to an impeachable offense.  The case is then taken up by the US Senate, which holds a trial.  If two-thirds of the senators vote guilty, then the individual is removed from office.  Interestingly, according to the Senate impeachment process, the Senate may vote to bar the individual from holding office in the future.  Per Senate procedures this vote is held after the vote on the impeachment trial itself.

Can You Impeach After the President Leaves Office?

OK, so we know how impeachments happen, and where the power to impeach comes from, but what about when a president is no longer the president at the time the Senate impeachment trial begins?  The text of the US Constitution is silent on whether a president can be impeached after leaving office, however we know that the framers of the Constitution were aware that this was a possibility.  At the time of the Constitutional Convention, the British were proceeding with the impeachment of Warren Hastings, 2 years after his resignation as governor of Bengal.  While the delegates to the Convention made note of this impeachment, and there is no mention of any objection to the timing of the process.  For any originalists out there in the mold of ex-justice Scalia, Justice Thomas, or Justice Coney Barrett, this seems to be strong evidence that a post-office impeachment is within the intent of the Constitution.

So that settles it, right?  Not so fast.  In law, you only look to the intent of the statute, or in this case the Constitution, if the plain text of the document is ambiguous.  The plain text of the Constitution states that “[t]he President, Vice President, and all civil officers of the United States shall be removed from office on impeachment…and conviction.” Clearly the framers had removal in mind as a remedy for malfeasance, but does this necessarily foreclose impeachment after the individual has left office?

We can look to history to shed some light on this phenomenon.  Former President Richard Nixon faced an impeachment trial in the Senate when he resigned his post. The trial was dropped, President Ford pardoned him, and the country moved forward.  This is the course of action that many current Republican senators propose as a proper end to Donald Trump’s second impeachment.  However, President Nixon had already served 2 terms as president, and was not eligible to run again.  In President Trump’s case, the potential consequence of being impeached include being barred from serving again.  The potential prohibition on holding future office as a consequence of an impeachment trial would be a penalty available to be used against President Trump, but was unavailable to those prosecuting President Nixon.

There is also the argument that impeachment is a mechanism given to the republic by the framers of the Constitution in order to allow the republic to hold government officials accountable for their conduct. Once could easily imagine a scenario where an elected official commits impeachable, but not criminal, offenses, then resigns to escape responsibility. In that scenario is it in society’s interest to have the ability to punish those offenses, specifically by taking away the ability in the future to hold public offices where such acts might be repeated?

The Belknap Impeachment

While there is no precedent in America for impeachment of a president after leaving office, one US official did face impeachment after resigning his post.  In 1876 Secretary of War William Belknap was investigated for taking bribes in his official capacity. The investigating committee delivered a recommendation to the House that Secretary Belknap be impeached despite knowledge that the Secretary had resigned hours earlier. 

The Belknap case was strikingly similar to the current impeachment case against Donald Trump.  The House debated its ability to impeach after Belknap left office, ultimately impeaching the Secretary.  The debate then moved to the Senate, where Secretary Belknap asserted that because he was now a private citizen, the Senate lacked the jurisdiction to bring him to trial for impeachment.  The Senate debated for 3 days on strictly the jurisdictional argument of whether they had the ability to proceed with the trial.  After 2 weeks of deliberation, by a vote of 37-29, the Senate found that they did have the ability to bring Secretary Belknap to an impeachment trial.  This decision cemented the Senate’s view that they were able to impeach individuals who were no longer in office. 

Continuing the parallel between Belknap and Trump, in Belknap’s case the Senate could not muster the two-thirds majority needed to convict.  A number of senators voted to acquit based on their belief that the chamber lacked jurisdiction over a civil servant no longer in office.  Multiple senators today have made statements that they plan to acquit Donald Trump on the same rationale.

Precedent is a driving force in American jurisprudence, and it seems likely that President Trump, willingly or unwillingly, will follow the path blazed by Secretary Belknap.  The Senate set the precedent allowing impeachment trials even after an individual leaves office, and it seems unlikely that Congress or today’s Supreme Court will overturn that decision from over a century ago.