They are wrong.
Both of us have studied and written about impeachment for many years. We each concluded long ago that the history, structure, rationale and application of the Constitution’s impeachment clauses provide powerful evidence for “late impeachability.” This evidence includes precedents: cases in which the House has impeached and the Senate has tried people who had already left office.
We also believe that, while impeaching someone who has left office is usually pointless, in some cases — perhaps including Trump’s — it may serve important national interests.
The text of the Constitution’s pardon clauses does not directly address late impeachability. Article II, Section 4 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.” On its face, this says only that officeholders are removed if in office when convicted; it does not say that an official must still be in office at the time of his or her impeachment and conviction. Congress has used this clause to limit impeachment to people who were officers at the time they committed their offenses, not to people who were officers at the time of their trial.
Article I, Section 3, provides another consequence besides removal: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” The Framers were concerned not just with the risks of leaving a bad official in place, but also with the danger to constitutional order such a person might pose if readmitted to the government in the future. That fear is just as applicable to those who have just left office as to those still in it.
There is strong historical evidence for late impeachability. The Constitution’s Framers were conscious of late impeachment. In drafting the impeachment provisions of the federal constitution, the Framers were heavily influenced by the experience of the states they represented. Between 1776 and 1787, 10 of the newly independent states adopted constitutions that included impeachment provisions. Five specifically permitted late impeachment; no state explicitly forbade it.
English impeachment also had an influence, and during the constitutional convention, Parliament was in the process of impeaching Warren Hastings, who had already retired from the office of governor general of Bengal when Parliament impeached him. The Framers were acutely aware of the Hastings proceeding, with George Mason raising it as an example during debate on the impeachment clauses.
The first impeachment trial under the new Constitution, in 1798, was of an ex-official: Sen. William Blount had conspired to give the British control over then-Spanish Florida and parts of French Louisiana. As soon as the plot was exposed, the House impeached him. The Senate expelled him soon after. At his impeachment trial, Blount’s lawyers argued Blount could not be tried because he was no longer a senator. That argument failed. Blount was ultimately acquitted by a vote of 14-11, but on the basis that senators are not “officers” subject to impeachment in the first place.
An even stronger precedent is the 1876 case of ex-secretary of war William Belknap. After his corrupt scheme to sell a post as Indian agent was revealed to the House, Belknap quickly resigned before he could be impeached. But the House impeached the “late Secretary of War” anyway. The Senate debated late impeachability for over a month before voting 37-29 that it had the power to try an ex-officer. Belknap was nonetheless narrowly acquitted. Based on senators’ statements, there probably would have been enough votes to convict Belknap if he had not already left office. But the Senate did decide it had jurisdiction — in the end, it determined only that Belknap shouldn’t be convicted, not that he couldn’t be.
Subsequent precedents reinforced late impeachability. In 1926, federal judge George English resigned a few days after being impeached. The Senate dismissed the case after the House argued there was little point in proceeding — but the House managers also took pains to note that English’s resignation “in no way affect[ed] the right of the Senate, sitting as a court of impeachment, to hear and determine” the case. Other cases involving resignations ended with similar language (choosing not to proceed with the trial, despite having the power to do so) including most recently the case of Judge Samuel Kent in 2009.
In sum, Congress has repeatedly asserted its late-impeachment powers, but has rarely found late impeachment worth pursuing. When would it be?
The two most important reasons to pursue a late impeachment are, first, to deter presidents’ misbehavior during their waning days in office, and second, to permanently remove them from public life if their conduct suggests they would pose a continuing danger to the country if they ever returned to a position of national authority.
Impeachment represents an important disincentive to presidential misconduct. It would be odd to think that such misconduct was no longer worth deterring once the president was a lame duck. But that would be the effect of declaring misconduct unimpeachable if it’s committed late enough in the term.
Likewise, a president who combines impeachable conduct with aspirations of returning to government presents a special future danger. Given Trump’s expressed interest in running for president in 2024, this factor seems to apply here. The current impeachment effort against Trump has been spurred by the fatal attack on the Capitol by his supporters in an attempt to prevent the certification of his election defeat. That means Congress has especially poignant and traumatic reasons for considering whether Trump’s return to public life might pose such a danger.
Ultimately, though, it is not enough to say ex-presidents can be impeached. Nor is it enough to note that Trump’s case exhibits the characteristics that make late-impeachment cases worthwhile. The bottom line is that none of this matters unless a two-thirds Senate majority is willing to convict. The real question is never whether an impeachment is possible; it is whether it will accomplish anything. That is not a question for lawyers — it’s one for politicians and voters.