Sen. Rand Paul (R-Ky.) argued Tuesday — and 44 of the 50 Senate Republicans agreed — that you could not possibly carry forward the impeachment trial of somebody who was no longer in office. What would the Founders have thought? Fortunately, I found the section of notes from a day when we thought the Constitutional Convention was not in session that explains how right they were:

“Docr. Franklin was for retaining the [impeachment] clause as favorable to the Executive. … It wd.. be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” — actual Madison Notes

Col. Mason assented.

Mr. Gerry assented.

Mr. Govr Morris assented also, but then said, wait, he had a hypothetical.

Docr. Franklin said he would hear the hypothetical but he hoped it would be short as he had been hoping today would be a half day and he had promised to go autograph some stoves.

Mr. Govr Morris said he understood it was important to have impeachment since the chief magistrate of the people might seek to corrupt the electors, but suppose that the election had already taken place, and the chief magistrate was so corrupt as to seek to alter the result afterwards.

Docr. Franklin said ?

Mr. Govr Morris said he would elaborate.

Mr. Gerry said he hoped he would not elaborate too long because he wanted to show everybody a cool drawing he had made of a lizard that could also be a great shape for a representative district.

Mr. Govr Morris said that suppose there were an enormous network that would permit people all across the United States to communicate one with another and to form themselves into parties and associations based upon mutual interests.

Mr. Gerry inquired what Mr. Govr Morris was smoking, and Docr. Franklin said hush.

Mr. Govr Morris said that furthermore, suppose not all of these associations would be based upon truth and some people would gather together animated by a spirit of conspiracy and scheme to overthrow the legitimate government. And what if those people were to gather all at once on the very day the electoral results were to be certified, and motivated by the words of the then-chief magistrate, they were to march upon the legislature and threaten those within.

Mr. Hamilton said he hoped the capital would be located in New York City! and Docr. Franklin said hush.

Mr. Govr Morris said that supposing these Internet people were to march on the Capitol in Washington in a harrowing moment of insurrection, resulting in the loss of life, could they not then impeach the chief magistrate for his involvement?

Docr. Franklin said that he saw no reason why not and that indeed he thought they ought certainly to do so.

Mr. Govr Morris said he agreed this was only natural but wait there was more!

Mr. Madison inquired if this tangent was going somewhere and he needed to keep taking these meticulous notes which everybody seemed to take for granted but which didn’t just come out of thin air, you knew.

Mr. Govr Morris said that due hypothetically to a delay occasioned on the part of the Senate majority leader, suppose that by the time the matter of impeachment was brought to trial, the term of the chief magistrate had ended and he was president no longer?

Mr. Hamilton said he was certain the legislature would do its duty, for, if by dint of leaving an office you ceased to be liable for any penalty for crimes committed therein or from being barred from holding the office in the future, it would be an incentive to crime.

Mr. Govr Morris inquired whether one could be certain, for perhaps senators might deem it no longer their duty, as the man was no longer president, and they could feel that they had dodged a bullet.

Mr. Hamilton replied that dodging a bullet was for cowards.

Mr. Gerry said that it would be kind of fun and weird if they left this one specific ambiguity where if you did a little insurrection after the election just before you were due to leave office it might be okay. Probably no harm would come of it anyway since it would almost certainly never come up given how oddly specific the hypothetical was.

Mr. Govr Morris thought that maybe they should just specify that you could still be put on impeachment trial because otherwise you were creating the conditions for a strange carnival limbo of a few weeks during which the chief magistrate might do high crimes and misdemeanors and know no law — or that if that was their intent, they should be bold enough to state it specifically.

Mr. Madison said that he thought it unlikely senators would be so confused about their duty and that no president was likely to have a cult of personality of such a size that senators would not be more attentive to the welfare of the state than to leave such an offense hanging in the air without consequence.

Docr. Franklin said he agreed it was a dangerous loophole but thought the situation unlikely to arise, as the capital would almost certainly not be located in Washington, as Mr. Govr Morris had asserted, and that if you would excuse him he had to go sign some stoves.

Mr. Govr Morris said he now had one very specific thing he was going to worry about for the rest of his life.

Mr. Gerry asked if people wanted to see his lizard drawing yet, and Mr. Madison said he would include it in the notes.

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