Can a Former President Be Impeached and Convicted?

I have a great deal of respect for former Judge Michael Luttig, and so one should think twice when one finds oneself in disagreement with him. I have previously argued that former presidents can be subject to House impeachment and a Senate trial. In a recent Twitter thread, now converted into an op-ed, Luttig argues that former presidents are beyond the reach of the impeachment power. I am not persuaded.

It looks like this question will be a live one, because Senate Majority Leader Mitch McConnell is not agreeing to calling the Senate back into session for an impeachment trial before Inauguration Day. Trump’s defense team will undoubtedly argue that the Senate does not have jurisdiction over the former president, and they may even attempt to get judicial intervention if the Senate moves ahead despite that objection. Assuming the Senate (and the courts) do not shut down the trial before it gets started, the jurisdictional argument might still matter. It takes only a majority of senators to overrule the motion to dismiss, but it will take two-thirds to convict on the article of impeachment. Some number of Republican senators might latch hold of the jurisdictional argument as a reason to vote against conviction. For this reason, it’s worth taking this issue seriously.

I continue to believe that the senators should not let such a jurisdictional argument hold them up, as does Brian Kalt, who has looked into this issue closely. Luttig, however, writes that the “Constitution itself answers this question clearly.” He believes that “the Senate’s only power under the Constitution is to convict—or not—an incumbent president.” He points to “purpose, text and structure” in support of this conclusion.

The core of his claim is this argument:

The very concept of constitutional impeachment presupposes the impeachment, conviction and removal of a president who is, at the time of his impeachment, an incumbent in the office from which he is removed. Indeed, that was the purpose of the impeachment power, to remove from office a president or other “civil official” before he could further harm the nation from the office he then occupies.

Luttig notes that Article II, Section 4 of the Constitution states, “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.” Likewise, the Senate cannot convict and impose the punishment of disqualification from future federal office unless the president has been “constitutionally impeached.”

He admits that the Senate proceeded in two cases involving officials who had resigned from office before the trial and that, therefore, the congressional understanding of its impeachment power includes the possibility of trial, if not impeachment, of former officials. But, he says, “only the Supreme Court can answer the question” of the scope of the impeachment power, and he thinks that it is “so clear” that the Senate does not possess such jurisdiction that it is “highly unlikely” that the Supreme Court would accept a Senate trial in Trump’s case.

I have to admit that this conclusion is not nearly “so clear” to me. Let’s begin with the text. It is notable that the Constitution does not explicitly say who is subject to the jurisdiction of the House in the chamber’s exercise of the impeachment power, and it does not explicitly prohibit the impeachment of former officers. Luttig does not explain why he draws the inference he does from the text that he quotes. It is a plausible reading of the text, but it is not necessarily the only or correct reading.

The Constitution gives the House the “sole Power of Impeachment.” It gives the Senate the “sole Power to try all Impeachments.” The House cannot prosecute its impeachment before some other, more friendly body than the Senate, and the Senate cannot initiate its own impeachment process. The Constitution does not specify the scope of the impeachment power, except to delineate the types of charges that can be the basis for an impeachment, limit the types of punishments the Senate can impose on the convicted, and direct that certain officers “shall be removed from office” upon impeachment and conviction.

So it seems important to know what this “power of impeachment” is that has been vested in the House. The founders borrowed this power from British parliamentary practice and state constitutional practice, which does not suggest that the “power of impeachment” was intrinsically limited to incumbent officers. Quite the contrary, in fact: British practice indicates that the “power of impeachment” is the power to lodge formal allegations that an individual engaged in misconduct while holding a governmental office. Impeachments of former officers were both known and explicitly textually allowed. The framers did not discuss the matter one way or another, but they could easily have understood that the “power of impeachment” implicitly includes a jurisdiction over former officials. The text is at best vague and at worst includes former officers. And if the House can impeach them, then the Senate can try them, because the Senate has the power “to try all impeachments.”

Of course, in Trump’s case the impeachment is of a current officer, and so the question is whether the Senate loses jurisdiction if the impeached officer resigns or completes his term before the trial. But if the Senate has the power “to try all impeachments,” then it would seem that it has the power to try all individuals whom the House has impeached and brought to trial regardless of whether that individual still holds public office. The House has frequently chosen to drop its impeachment efforts when an officer resigns; in those cases, it has generally either not voted on an impeachment resolution, not drafted articles of impeachment or not presented articles of impeachment to the Senate. But the fact that the House frequently concludes that its goals have been accomplished by the officer’s resignation does not mean that the House could not have seen the impeachment through all the way to a Senate verdict.

It is true that Article II, Section 4 does specify what happens to specified officers upon conviction in a Senate impeachment trial. This language generally has been read, quite reasonably, to limit the potential scope of the impeachment power. The named offices are the president, vice president and all civil officers of the federal government. This is understood to mean that federal military officers are not subject to the impeachment power, and neither are state government officials nor private individuals. The Constitution could have been written differently, but this extension of the jurisdictional scope of the impeachment power to other individuals would have departed from inherited practice and could be expected to require an explicit textual delegation. According to Section 4, incumbent officers “shall be removed” upon conviction,which is why the Senate does not take a separate vote on whether to remove—instead, removal is automatic and instantaneous upon conviction. Section 4 says nothing about what happens to former officers. And Article I states that the punishment that the Senate can levy after conviction “shall not extend further” than removal and disqualification. So while the Senate has limited punishments it can impose, Article I says nothing about whether Senate trials or punishments are limited to incumbent officers.

What about the purpose of the constitutional impeachment power? Luttig suggests that the sole purpose of the impeachment power is “to remove from office” an individual “before he could further harm the nation from the office he then occupies.”

This phrasing of the claim is, at the very least, awkward. If the whole point of an impeachment is to address the harm that someone can do “from the office he then occupies,” then could a current officer be impeached and tried for his misdeeds in a previous office? Precedent suggests the answer is yes: Become a supporter of IT Security News and help us remove the ads.