This week, the House of Representative will almost certainly vote to impeach President Donald Trump for the second time in his one failed term for inciting an insurrection. Since he has nine days left in his term, you might be wondering whether it is legal to do so and what the point would be of doing so. After all, Joe Biden will be inaugurated president on January 20th.
Impeachment is one of these constitutional matters that cannot properly be understood without knowledge of English and American legal history. So, let’s review some of that history as we examine whether a president (or any other official subject to the impeachment clauses) can avoid impeachment and conviction by resigning or otherwise leaving office.
What is Impeachment?
Impeachment is a process invented by the English Parliament in the 14th century as a check on the monarch. Until the 19th century, government ministers were appointed by the Crown, not Parliament. Since Parliament could not sanction or remove the King by legal means, impeachment was created to indirectly assert its authority by removing government ministers. It is part of the centuries-long struggle between Parliament and Crown for power in Britain.
While impeachment had been rarely used in the 15th and 16th centuries, Parliament used it more frequently in the 17th and 18th centuries. Colonial Americans – particularly the class of persons represented by the framers of the constitution – were well aware of impeachment and what purposes it served. In particular, there were at least two infamous cases of impeachment (one in Massachusetts and the other in Pennsylvania) that occurred in the framers’ recent memory. The issues at stake in these impeachments made their way into the Philadelphia convention as can be seen not just from the notes on the debates that were published much later, but in the way the judiciary was conceived in Article III. For instance, the issues of judicial tenure and salaries were at the heart of the Massachusetts impeachment case.
Why did Americans limit it?
Impeachment in the US is limited to treason, bribery, and high crimes and misdemeanors, and punishment can extend no further than removal from office and disqualification. Further, treason itself was limited in the constitution to making war on the US or aiding her enemies and requires the testimony of two persons. All of these things are reactions to how the British Parliament used impeachment.
Impeachment in Britain was as much a criminal process as a political one. Ministers who were impeached were often charged and convicted of treason and sentenced to criminal sentences, including death. It was not uncommon in English history for the monarch to declare treason whenever someone fell out of favor for one reason or another. (Parliament used the same tactic through impeachment from time to time.) If you are familiar with Game of Thrones, you get the idea. The Americans wanted an impeachment process as a political check on the executive, but one that would not be used to simply criminalize the majority party’s opponents.
Impeachment works simply. The House of Representatives has the sole power to impeach officials, and can do so through a simple majority vote. The next step is for the House to present the articles of impeachment to the Senate (and it is perfectly legal for the House to wait some time before doing so). The Senate, with the Chief Justice presiding, holds a “trial” (it is not a judicial trial, the Senate makes its own rules). Removal takes place upon conviction by 2/3 of Senators who are present (not of the whole body). The Senate can also disqualify the convicted official by a simple majority vote.*
What does “high crimes and misdemeanors” mean?
This warrants a much longer post of its own, so let’s keep it simple. It is a legal term of art that has a seven hundred year history dating back to the impeachment and exile of 1st Earl of Suffolk in 1386. “High” refers to matters of state or so essential to the public position at issue. “Crimes and misdemeanors” refers to more than just crimes, but – in the historical sense in England – included maladministration, incompetence, and incapacity. One way to think of it is that high crimes and misdemeanors refers to crimes against the state (rather than personal) and to other transgressions that speak to the fitness of the president to hold office. As a practical matter, Congress decides whether some behavior is a high crime and misdemeanor. It is a political question, and the courts have no jurisdiction over it.
Okay, now let’s get to the part that is relevant to what’s happening this week.
If the president is no longer in office, can he still be impeached?
The president, along with other “civil officers” (a term that includes federal judges and cabinet secretaries), can be impeached even after leaving office. The very first impeachment case under the US constitution supports this theory. It was the only time a member of Congress was impeached by the House of Representatives. In 1797 Senator William Blount (Democratic-Republican-TN) was accused of planning to conspire with Britain to take over Louisiana territory that France had recently won back from Spain. The Senate under its constitutional authority expelled him, but the House later voted to impeach. The reasoning for this was to ensure Blount could not ever hold public office again. The Senate, however, voted to acquit Blount because there was disagreement over whether a Senator was subject to impeachment and, in any case, they had already expelled him.
The second precedent was the only impeachment of a cabinet secretary, Secretary of War William Belknap in 1876. Belknap was exposed for taking kickbacks from a customs official and, as Congress prepared articles of impeachment, he resigned. This did not stop the House from impeaching Belknap. There was no disagreement over whether cabinet secretaries were subject to impeachment** and there was general agreement that no one should be able to avoid impeachment by resigning. In fact, before commencing the trial the Senate voted that there was jurisdiction to impeach a resigned official. However, there were enough Senators who thought they did not have jurisdiction (whether based on resignation or status) that they could not reach the 2/3 necessary for conviction.
Despite the Senate failing to convict both of these officials, the cases do stand for the proposition that an official subject to impeachment, such as the president, can be impeached after he or she is no longer in that office. There is nothing in the text of the constitution that provides otherwise. Impeachment is not explicitly reserved for officials currently in office. It may seem strange on first glance that there would be any reason to impeach someone who is no longer in office. That, however, is the result of a particularly American belief that impeachment is about getting someone out of office. Since the constitution was drafted to ensure that the Senate would not sentence a convicted president to death, jail, or exile (or use that potential power as leverage over the president), we often think of impeachment to be just about removal from office. However, lesser penalties are permissible. The Senate could choose to censure an impeached president rather than convict him; in fact, it would only need a simple majority to do that.***
Why would we impeach a president who is no longer in office?
The most important reason why impeachment is available even where the official accused is no longer in office is to disqualify him or her from holding federal office in the future. A secondary reason is to remove any benefit the accused enjoys in retirement, such as a pension or travel allowances. If impeachment were only available where the official is currently in office at the time of conviction, then a corrupt or criminal president could avoid these penalties simply by resigning. In fact, that was exactly what Blount was trying to do in 1876. Presumably, he had his sights set on future political office – or at least wanted to keep his options open. If that was not true, there is another reason to impeach that does not require the accused to be in office at the time of conviction: accountability. Resigning – or letting the clock run out on a presidential term – allows the accused to argue that since he or she was not impeached and convicted, nothing really bad happened in the first place. That is especially true where the president’s term expires before the Senate can take up the charges from the House.
You might wonder why Nixon was not impeached after his resignation in 1974. Is not that a precedent that impeachment is not available to presidents once they resign? The answer to that question is clearly no. There is no precedent here because the House chose to drop impeachment once Nixon resigned. That he left office rather than continue to fight for two more years (or until he was removed) was considered a gesture worthy of ending impeachment for many in Congress. It has been a long process and most people were just glad that he was gone. He was ineligible for another term as president and no one seriously believed he would run for Senate or the House (although I bet he would have had considered it if the opportunity had arisen and he had not been outsmarted by David Frost on television). Ford’s pardon came soon after Nixon’s resignation and, even though the pardon power does not extend to impeachments, that seemed an end to the fiasco for most people.
There is one other reason why impeachment should (and is) available against a president who has resigned or is otherwise no longer in office: to send a message to future officials. With a charge as serious as incitement to insurrection, Congress has an interest in making sure that no future president behaves like Trump has. Letting him fade away (assuming that’s possible for a carnival barker like him to do) will only serve to give notice to others that they can get away with such behavior. In fact, without impeachment and conviction, Trump will be eligible to run again in 2024. Even if he does not run, another of his supporters in government might and, if successful, might figure that he can behave badly as well and no one will stop him (and maybe next time the voters won’t have a chance to). Perhaps if Nixon had been impeached and convicted after his resignation, things might be different today.
Impeachment and conviction not only are available for presidents who have resigned or left office, they must be available. The process is essential to a free, non-corrupt, and functioning democracy.
Notes
* Federal District Court Judge Alcee Hastings was impeached and convicted for bribery and perjury by the Senate in 1988. (He had previous been acquitted of bribery by a criminal court.) In 1993 he was elected to Congress. The Senate had failed to vote on disqualification. They could have included it in the question presented for conviction (which did get the required 2/3 vote) or separately afterwards (which would only require a simple majority), but they did neither.
** During the Philadelphia convention and afterwards, some assumed that cabinet secretaries would be similar to Parliamentary ministers in terms of portfolios and, since they were subject to Senate approval, they would have independent sources of authority from the president. In practice, it did not work that way. Nevertheless, it is uncontroversial that they were intended to be subject to impeachment through the inclusion of “civil officers” in the impeachment clauses. The issue of impeaching a Senator is different, however. There is no indication that legislative officials were intended to be subject to impeachment (even though it did happen in the British Parliament). In fact, the expulsion process in the Senate would appear to be the constitution’s answer for legislative impeachment. Additionally, there was sincere concern that the Senate should not be the jury in an impeachment trial for one of their own members. The issue of House members being subject to impeachment has never been seriously considered because their two-year terms were intentionally set so that they would have to face the voters frequently. Thus, for House members, one might consider the biennial election as a type of impeachment process for them.
*** A number of officials, including former Chief Justice William Rehnquist, think impeachment must result in a trial and conviction can only come with 2/3 majority and no punishment greater or lesser than removal and disqualification is permitted. However, there is no obstacle in the text of the constitution nor in the historical understanding of impeachment that dictates this conclusion. But that’s a discussion for a different day.