Philip Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School. Richard Danzig, a former associate professor at Stanford Law School, was secretary of the Navy under President Bill Clinton.
Trump deserves punishment. His lies about a fair election and incitement of a mob are the culmination of four years of wanton injury to America. Nothing in his tenure as president was as shameful as his manner of leaving office. And this is a strong statement.
But Trump is now ex-president Trump. How does this affect impeachment — a form of surgery on the American body politic? We think this supposed “remedy” will compound the damage we so condemn.
Our Constitution limits Congress to expressly enumerated powers. In the present case, this foundational principle is reinforced by a particularly relevant prohibition, Article I, Section 9, which prohibits “bills of attainder” — acts of Congress that punish specific individuals.
Article II, Section 4 provides a narrow exception to this prohibition: “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.” This is plainly and expressly a power to impeach civil officers — not former civil officers — of the United States.
Impeachment’s principal purpose, as the 66th of the Federalist Papers makes clear, is to check the “encroachments of the executive.” Trial by jury, rules of evidence and other safeguards are put aside because of the need to protect the public from further abuse of office.
Proponents of the second impeachment of Trump assert that this power extends to those no longer in office. The core of their argument derives from Article I’s provision that the penalty on conviction for an impeachable offense “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.” They say it would frustrate this penalty if an officer could avoid removal and disqualification by simply resigning.
But this argument tries to make a penalty — disqualification — a justification for the whole proceeding. The secondary position of disqualification is further suggested by the fact that conviction and removal require a two-thirds majority of voting senators. Disqualification comes after such a vote and requires only a bare majority.
Courts have not addressed whether someone can be impeached and convicted after leaving office. Congressional precedents exist, but their force is uncertain. While judicial precedents have power to the extent that their reasoning is persuasive, the judges are disinterested and differing cases are reconciled, congressional constitutional decisions rarely provide clear roadmaps for future cases.
For example, in 1876 a preliminary vote of senators agreed to take up impeachment of William Belknap, Ulysses S. Grant’s secretary of war, even though Belknap had recently resigned. Belknap was acquitted, however, vitiating the force of the case as a governing precedent because enough senators to frustrate conviction had already expressed their view that a former civil officer could not be validly tried. There are also precedents in 1926 and 2009 in which judges resigned after being impeached, and the House then withdrew the indictment.
Perhaps most informatively, when Richard M. Nixon resigned on the verge of being impeached, all impeachment efforts ceased. Although he was subsequently pardoned by President Gerald Ford, impeachment is expressly excepted from the president’s pardon power. Congress could have impeached Nixon after his resignation if enough members thought that constitutionally possible. But we find no record of anyone even suggesting this. Impeachment was apparently universally understood to be overtaken by resignation.
Against this backdrop, proponents of impeachment should further consider what comes next if they proceed. The very debatable assertion that an ex-president can be impeached will undoubtedly be challenged in court. Challenges to the propriety of impeaching an ex-president will be advanced with more legal support than we have outlined in this short column. A contentious process will then focus on the wrong question: not on Donald Trump’s destructive acts but on the reasonably asserted impropriety of Congress’s action. Worse still, litigation has a significant risk of invalidating conviction.
Crucially, we worry about politicians barring other politicians from running for office. The Constitution grants this power in very narrow circumstances, and it should be used scrupulously. The Senate should not misapply the law in an effort to punish someone who subverted the law.