— Senate Majority Leader Charles E. Schumer (D-N.Y.), in remarks on the Senate floor, Jan. 26, 2021
When we fact-checked this question in 2019 — whether former presidents are subject to impeachment — it was little more than an offbeat debate among some legal scholars, the kind of situation that never actually happens.
Well, it’s happening now, and the debate has reached its wonky crescendo. Scores of law professors, historians and pundits have weighed in as the Senate begins its trial of former president Donald Trump, who was impeached by the House for allegedly inciting insurrection at the Capitol on Jan. 6.
Our 2019 fact check was prompted by a tweet from Rep. Matt Gaetz (R-Fla.), a Trump ally who said that “you actually can impeach former presidents” and suggested former president Barack Obama get the treatment. (This came during Trump’s first impeachment, over his dealings with Ukraine.)
Now the shoe is on the other foot. In recent weeks, some of the same scholars we spoke to in 2019 about the Obama claim have firmed up their views when asked about Trump. For his part, Gaetz is now giving kudos to the “brilliance” of Paul’s floor remarks, in which the senator argued that impeaching former officials is unconstitutional. Go figure.
We won’t be giving any Pinocchios, because the question is still a “known unknown,” as we previously found. Instead, we will give readers the legal lay of the land.
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. The bottom line is the Constitution gives the Senate the “sole Power” to try all impeachments, and so whatever the Senate decides will settle the debate once and for all.
(Update): After this fact check was published, the Senate voted 56-44 that Trump’s trial was constitutional. The winning side was 11 votes short of the two-thirds majority needed for an eventual conviction.
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.”
This section lists only sitting officers, not former officials, but it says nothing about disqualifying people from holding future office.
Article I, Section 3, says: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. 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.”
This section says the maximum penalty for those impeached and convicted is not just getting fired. The Senate also may choose to impose a ban from holding future office. It raises several questions. Aren’t all people who get banned from office by necessity former officeholders? (It’s hard to be both banned and in office at the same time.) Could the Senate proceed with a trial and ban an official who resigned or left office some other way?
Charles Cooper, a noted conservative lawyer, wrote in a Wall Street Journal opinion article that Trump could be tried as a former president. He noted that under established Senate procedures, “a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer.”
“Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders,” Cooper argued.
Some argue that in the phrase “the Senate shall have the sole power to try all impeachments,” “all” includes the impeachment of a president who has left office.
“All means all, and there are no exceptions to the rule,” Rep. Jamie B. Raskin (D-Md.), a constitutional law professor and the lead impeachment manager, said on the Senate floor Tuesday, at the start of Trump’s second trial.
In Trump’s case, the House impeached him as a sitting president, but the Senate trial began after his term ended on Jan. 20. That adds another wrinkle of uncertainty. Sen. Patrick J. Leahy (D-Vt.), the longest-serving senator in the majority, is presiding over Trump’s trial, not Chief Justice John G. Roberts Jr., who was asked to preside and declined.
“While the framers very clearly envisaged the occasional necessity of initiating impeachment proceedings, they put in place only a very general framework to guide future action,” according to the Senate Historical Office.
The Supreme Court unanimously ruled in 1993 that the Senate had the sole power to try impeached officials and that judges could not step in to resolve disputes concerning the rules and procedures senators used to conduct such trials. Such disputes are “nonjusticiable,” Chief Justice William H. Rehnquist wrote in deciding Walter Nixon v. United States, meaning they cannot be heard by the courts unless they involve the basic requirements listed in the Constitution (such as a two-thirds majority of senators needed to convict).
Rehnquist wrote that the 1993 case “involves a political question” and that “the word ‘sole’ indicates that this authority is reposed in the Senate and nowhere else.”
While we reported our fact check in 2019, some scholars argued it was impossible to impeach former officials. Some said it was possible — if Congress wanted to ban them from holding federal office again. One scholar said a definitive answer would come only after a court battle on these issues.
Frank O. Bowman III of the University of Missouri School of Law, the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” told us in 2019 that the answer was “unknowable.” This year, in a letter signed by numerous legal scholars, Bowman adopted the view that “the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.”
Ilya Somin, a law professor at George Mason University, also signed the letter. In 2019, he told us the courts would have to resolve the question.
“This is an unresolved question in which there are plausible arguments both ways,” he said then, adding, “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 in 2019. He added that his personal opinion was that former officials could be impeached, so his views are consistent.
Others told us that it was not possible and that impeachment was designed to remove sitting presidents between elections, and as the sole mechanism to remove sitting judges.
“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,” 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 in 2019. He still holds that view today, Krent told us.
Then-Senate Republican 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.
The House impeached Sen. William Blount of Tennessee in 1797 on treason charges related to land speculation (trying to sell off Florida and Louisiana), 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 amid bribery accusations. 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 told us in 2019. The Constitution requires a two-thirds Senate majority to convict an official on impeachment charges, but can a simple majority set a working precedent?
We are about to find out.
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