i.) Can a former President even be impeached?
A Quick Reminder: If you aren’t aware of the general process of Congressional impeachment, here’s a brief roadmap:
As you’re probably aware by now, Former President Donald Trump just recently became the only President (former or otherwise) to be impeached twice by the House of Representatives. However, he has also been acquitted by the Senate both times. Usually, that means that the Senate has determined that the President’s conduct did not warrant formal impeachment, however this time around there was another criticism against the idea of impeachment: Former official Constitutional can’t be subject to impeachment. In fact, at least ten Republican Senators have explicitly mentioned this reason in public statements for why they oppose the impeachment trial. This is a very interesting question about how to fundamentally interpret the Constitution and the powers of Congress, so it warrants some investigation.
Surprisingly, the Constitution is actually quiet on the issue of who can be impeached. The main clause of the Constitution dealing with impeachment, aptly called the “Impeachment Clause”, says 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.” Notice the phrasing here. It doesn’t say the mentioned officers are the only people subject to impeachment, it merely says that this list of people, when impeached, will be removed from their office. The bare text of the Constitution just leaves us at square one! This question has confounded legal scholars for as long as America has been around, and now the intellectual battle has been dragged onto the floor of the Congress.
David Shoen, one of Trump’s attorneys, argued that impeaching a former official is unconstitutional.
Joshua Roberts | Pool
The Diametric Views
Trump’s Defenders: The Impeachment is Unconstitutional
Many members of the Republicans Party and a handful of Constitutional scholars have argued that impeaching and trying a former President is not within the Constitutional boundaries of the impeachment power. Individuals such as Former Circuit Judge Michael Luttig and Professor Philip Bobbitt of Columbia Law School have both argued that the “removal” language of the Impeachment Clause requires an individual to be sitting in a civil office to be convicted on articles of impeachment, because otherwise the impeachment does not trigger the effective language of the clause.
The Other Side of the Story: Congress Can Impeach Any Official, Former or Current
Although several notable jurists have come to the side of Trump on the issue, it seems that a majority of legal commentators agree that impeaching a former official is a valid Constitutional power. Professor Michael McConnell of Stanford, for example, spoke on the issue via the legal blog Volokh Conspiracy stating that former Officers can unequivocally be tried for high crimes and misdemeanors, as long as they were impeached while still in office. This argument stems from the Senate’s authority “to try all impeachments”, not just those against a President still in service. Yale Professor Akhil Amar, who has been cited in over 40 Supreme Court rulings, also agrees that a former official can be impeached and tried, a position he has held since at least 2005.
Professor Akhil Amar, who supports impeachment of former officials. Aziz Haniffa | India Abroad
Issues in interpreting the Constitution are almost never as simple as reading a text and issuing a judgement. This question has entertained some of the greatest legal thinkers of our age and will inevitably do so for many years to come. So, do you think the Constitution would have allowed Trump to be tried as he stepped out of office? Leave your thoughts in the comments below!
- Many GOP Senators have argued against Trump’s impeachment trial by asserting that it is unconstitutional.
- Prominent legal thinkers are divided on the issue, although it seems a majority believe that former officials can be tried before the Senate.
- https://www.washingtonpost.com/politics/2019/12/06/can-former-presidents-be-impeached/ (Statement of Akhil Amar)
- https://thehill.com/homenews/administration/533446-dershowitz-says-hed-defend-trump-again-in-impeachment-trial (Statement of Alan Dershowitz)
- https://www.washingtonpost.com/opinions/2021/01/24/is-impeachment-right-instrument-punish-donald-trump/ (Statement of Philip Bobbitt)
- https://reason.com/volokh/2021/01/28/impeaching-officials-while-theyre-in-office-but-trying-them-after-they-leave/ (Statement of Michael McConnell)