This seemingly simple question is actually the subject of debate among legal scholars.
Some argue it’s impossible to impeach former officials. Some say it’s possible — if Congress wants to ban them from holding federal office again. One scholar said a definitive answer would come only after a court battle on these issues.
For now, no court appears to have ruled on this question, the text of the Constitution doesn’t spell out the answer, and past practice in Congress is an inconclusive guide. So we will withhold a rating for Gaetz’s claim and instead take the scenic route through this quagmire, laying out what several legal experts told us.
The House Judiciary Committee held a hearing Dec. 4 in the impeachment inquiry of President Trump. Gaetz, a Trump ally, suggested at one point that former president Barack Obama should be impeached.
He’s not the first to float such an idea. Sen. Arlen Specter of Pennsylvania once suggested that former president Bill Clinton could be re-impeached for pardoning Democratic donor and fugitive Marc Rich on his last day in office. Clinton had been impeached on different charges and acquitted while in office.
Article II, Section 4 of the Constitution, says, “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.” Article I, Section 3, says, “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.”
That means an official found guilty at an impeachment trial faces two maximum penalties: getting fired, and getting banned from “any office of honor, trust or profit” in the U.S. government.
What happens if the official resigns before Congress imposes a ban on future office-holding? We consulted leading experts on impeachment and Constitutional law, and almost all raised concerns that an impeached official could dodge the ban on future office-holding with a well-timed exit.
But they gave a variety of answers when we asked whether former officials are impeachable. Gaetz’s office declined to comment.
Keith E. Wittington, a politics professor at Princeton University, said he was inspired by our query and wrote a blog post for Reason’s Volokh Conspiracy, expanding on what he told us via email:
“I don’t think there is a clear academic consensus on this question, and the constitutional text and history do not provide as much guidance and clarity on this issue as we might prefer. On the whole, I’m persuaded that so-called ‘late impeachments’ of former officers is within bounds of the Constitution, but are highly disfavored in our constitutional practice and would only be appropriate in an extreme case.
“Several early state constitutions explicitly provided for the possibility of impeaching officers for a period of time after they left office, and such impeachments seem to have been understood as within the impeachment power as derived from the English parliamentary practice. When the Constitution gives the House of Representatives the ‘sole power of impeachment,’ that plausibly includes former federal officers. American practice, and perhaps the language in Article II, seems to strictly limit the impeachment power to those who have held public office and exclude purely private citizens, but the possibility of condemning the public conduct of a former government official through impeachment and disqualifying him or her from holding any future office of trust through conviction still seems to be within the authority of the House and the Senate. It would be very hard to persuade the Senate to convict on the basis of such an impeachment, and the House would be very open to criticism that it was abusing the impeachment power if it were to pursue such an impeachment, but I don’t think such an impeachment can be strictly ruled out as a constitutional possibility.”
Wittington’s verdict: Difficult, but plausible.
In his 2005 book, Amar wrote: “Textually, only ‘Officers of the United States’ are impeachable. Perhaps impeachment could properly extend to former officers who should be disqualified from future officeholding, but not to Congress members generally.”
“In a nutshell, you have to work backwards from a situation where someone is about to be convicted,” he told us. “The sentencing gavel is about to fall. And 15 seconds before the sentence of removal and disqualification is announced, they say, ‘I resign,’ in order to avoid the sentence of removal and disqualification. That same concern might be true at any point in the process.”
Amar’s verdict: Not only possible — possibly necessary at times.
Harold J. Krent, a law professor who studies the U.S. presidency at the Illinois Institute of Technology’s Chicago-Kent College of Law, told us, “I believe strongly (but agree as to the lack of precedents) that one can only be impeached while in office.”
“The penalty is removal from office,” he said. “One could argue that impeachment might still be important if an officer resigns from the office so as to disqualify a former officeholder in the future (for example, Trump could not run again for president), but that seems tangential to the critical separation of powers role that impeachment plays: affording Congress a check on the sitting president.”
Krent’s verdict: Not possible, would be overkill.
Ross H. Garber, who has represented four U.S. governors facing impeachment and teaches at Tulane Law School, told us, “Article II, Section 4, by its terms, limits impeachment to current office holders.” That’s the part listing the president, vice president and “all civil officers” as potentially impeachable.
“A former office holder may not be impeached, removed or disqualified,” Garber said. “This interpretation would also honor the primary purpose of the impeachment provision, which is to protect the country from extraordinary abuses by executive branch officials in between elections and by judges who have lifetime tenure.”
Garber’s verdict: Not possible.
Ilya Somin, a law professor at George Mason University, is in the “known unknown” camp. “This is an unresolved question in which there are plausible arguments both ways,” he said, and “there has been debate on it going back to the 18th and 19th centuries.”
Let’s say Congress impeached and convicted a former officeholder, and then the official went to court challenging the move. The ruling in that case could settle the question once and for all. The courts could also kick the case back to Congress, which would make clear that it’s a decision for lawmakers and not judges, Somin said.
“My personal opinion is probably it could be permissible to impeach somebody who is out of office for the purpose of prohibiting future office-holding,” he added.
Somin’s verdict: Maybe, but the courts would have to give guidance.
He said judges generally stay away from impeachment questions. But there’s “a very powerful argument” for impeaching officials who resign and thwart the possible ban on office-holding, he said. “You shouldn’t have a situation where somebody can escape the bar on future officeholding simply by resigning really fast,” Bowman said. “You could really moot the second remedy in the Constitution.”
“I think it’s unknowable,” he continued. “It’s not a crazy claim. At the end of the Clinton administration, when he issued those horrible pardons … I was so ticked about that that I started to write a law review article urging his impeachment. And I had been very active arguing that what he had done before was not impeachable.”
Bowman’s verdict: Unknowable, but “not a crazy claim.”
The House impeached Sen. William Blount of Tennessee in 1797 on treason charges related to land speculation, and the Senate quickly expelled him. Senators held an impeachment trial after expelling Blount, but later acquitted him.
President Ulysses S. Grant’s secretary of war, William Belknap, resigned shortly before being impeached by the House for bribery. The Senate nevertheless heard from more than 40 witnesses in his 1876 trial, “as House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office,” according to the Senate Historical Office.
Neither precedent really settles the question Gaetz raised, Bowman said. The Constitution requires a two-thirds Senate majority to convict an official on impeachment charges, but can a simple majority set a working precedent?
“The tricky thing about Belknap is that there are actually two votes at the end of the trial, and one of them was a vote on whether the Senate had jurisdiction in light of the fact that he resigned, and the Senate voted that it did have jurisdiction,” Bowman said. “They voted 37-29 that they had jurisdiction. But on the other hand, then they voted 35-25 for conviction, but that didn’t meet the two-thirds threshold, and one conventional interpretation of that is that many of the senators who voted for acquittal concluded that they lacked jurisdiction. … What does it mean constitutionally? I don’t know.”
A classic case of a “known unknown.”
Send us facts to check by filling out this form