Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard Law School and most recently the co-author of “To End A Presidency: The Power of Impeachment.”
The Constitution, Article II, Section 4, provides that the president and other civil officers “shall be removed from Office” following impeachment and conviction by the Senate. Some scholars, most prominently former federal appeals court judge J. Michael Luttig, have argued that because Trump’s term will have already ended and he, by definition, cannot be removed, the impeachment power no longer applies.
With all respect, I disagree. The Constitution references impeachment in six places but nowhere answers that precise question. Article I, Section 3 comes closest to delineating the contours of the Impeachment Power, instructing 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.”
These “judgments” — removal and disqualification — are analytically distinct and linguistically divisible. Their divisibility was first established by the Senate during the 1862 trial of federal-turned-confederate Judge West Humphreys and reaffirmed by a parliamentary inquiry during the 1936 trial of impeached Judge Halsted Ritter. The only court to address the issue agreed with the Senate that an impeachment trial could proceed even after the individual was no longer in office.
To be sure, a former officer may no longer be “removed” even upon conviction by a two-thirds vote. But that has no bearing on whether such an ex-officer may be barred permanently from office upon being convicted. That separate judgment would require no more than a simple majority vote.
Concluding otherwise would all but erase the disqualification power from the Constitution’s text: If an impeachable officer became immune from trial and conviction upon leaving office, any official seeing conviction as imminent could easily remove the prospect of disqualification simply by resigning moments before the Senate’s anticipated verdict.
The clear weight of history, original understanding and congressional practice bolsters the case for concluding that the end of Donald Trump’s presidency would not end his Senate trial.
The impeachment power derives from the power of the British Parliament. One particular British impeachment featured prominently in the framers’ conception of the power: that of the former colonial governor of India, Warren Hastings. Led by Edmund Burke, the Hastings impeachment was repeatedly referenced during the Constitutional Convention in Philadelphia and, critically, was conducted entirely after Hastings had left office. Given the prominence of the Hastings’s impeachment to the framers, the absence of debate on the question at the federal or state ratifying conventions — not to mention the silence of the Constitution’s text on the point — speaks volumes.
So it’s unsurprising that Congress has throughout the nation’s history considered the power to try and judge impeachments to extend past an officeholder’s term. The question was first raised during the attempted 1797 impeachment of Sen. William Blount. One of the lead House prosecutors, Rep. James Bayard, and Blount’s lawyer agreed that a civil officer could not escape impeachment through resignation. Former president John Quincy Adams, while serving as a member of Congress many years later, concurred by declaring that “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”
Likewise, in 1876, Secretary of War William Belknap resigned minutes before the House was set to impeach him; the House still transmitted five articles of impeachment to the Senate. At Belknap’s trial, the Senate voted 37 to 29 that he was “amenable to trial by impeachment …notwithstanding his resignation of said office.” And the House and Senate rules have both long permitted the impeachment and trial of former officers for abuses committed while holding office.
Focusing on the purposes of the impeachment power yields the same conclusion. Its function is prospective rather than punitive: to prevent officers who have betrayed their oaths from committing further abuses and thereby inflicting future harm.
The need to protect the nation can sometimes be satisfied merely by removing a dangerous officer from power. Still, the inclusion of a separate power to disqualify is a clear recognition that removal might not always be sufficient. For such cases, the Constitution expressly provided the additional remedy of exclusion.
Disqualifying President Trump from ever again holding federal office is a particularly suitable remedy for fomenting and inciting insurrection. It is also fitting in stripping Trump of the very thing that motivated his impeachable offenses: the pursuit of future power.
To render this uniquely appropriate remedy unavailable simply because the gravest abuses of power were committed near the very end of a president’s term would be bizarre at best, self-sabotaging at worst. Nothing in the Constitution suggests that a president who has shown himself to be a deadly threat to our survival as a constitutional republic should be able to run out the clock on our ability to condemn his conduct and to ensure that it can never recur.
correction
An earlier version of this article misidentified the speaker of a quote about presidential impeachments. It was former president John Quincy Adams. This article has been updated.
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