Why Trump Can Be Convicted Even as an Ex-President
Yesterday’s vote by the House of Representatives to impeach President Trump (again) came notwithstanding objections from Republicans that such a move is unnecessary. Because Mr. Trump’s term ends at noon on Jan. 20, the argument goes, there is little point in expending energy to reinforce what is already, despite Mr. Trump’s best efforts, a legal inevitability.
But some commentators have gone further — arguing not only that Congress should not impeach and remove Mr. Trump but also that come Jan. 20, it cannot do so, because the Constitution doesn’t allow for the impeachment and removal of “former” officers. This argument is wrong as a matter of text, structure, historical practice and common sense. And Mr. Trump is the poster child for why, even after he leaves office, such accountability is not just constitutionally permissible but necessary.
With the Senate not expected to reconvene until next Tuesday, Mr. Trump’s impeachment trial could not begin until Wednesday afternoon at the earliest — after the inauguration of his successor. Article II, Section 4 of the Constitution provides that 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.” If that were all that the Constitution said about impeachment, there might be something to the argument that once the individual no longer holds the office, the impeachment power becomes defunct.
But Article I, Section 3 says more. In describing the powers of the Senate to conduct an impeachment trial, it provides 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” (emphasis added).
That latter clause is the key, because it drives home that the Senate has two decisions to make in impeachment cases: First, it must decide whether an officer should be removed. Then it must decide whether this person should be disqualified from holding any future federal office. Indeed, of the eight officers the Senate has ever voted to remove, it subsequently voted to disqualify only three of them — reinforcing that removal and disqualification are separate inquiries. And as this procedure and historical practice make clear, by the time the Senate votes on disqualification, the officer has already been removed. In other words, disqualification, at least, is itself necessarily a vote about a former (as opposed to current) officer.
More than that, the disqualification power is both the primary evidence of and the central reason the Constitution allows for the impeachment of former officers. Were it otherwise, an officer facing impeachment, or an officer who has already been impeached and is about to be removed, could also avoid disqualification simply by resigning. In 1876, disgraced Secretary of War William Belknap tried exactly that — resigning minutes before the House vote on his impeachment. The House impeached him anyway, concluding that his resignation did not defeat Congress’s impeachment power. And although some senators ultimately voted to acquit Belknap (who narrowly escaped a guilty verdict) because he was no longer in office, the Senate as a body first concluded that it had the power to try former officers, adopting a resolution that Belknap could be tried “for acts done as Secretary of War, notwithstanding his resignation of said office” before he was impeached.