On February 2, in preparation for the Senate trial, Trump’s legal team submitted its answer to the Articles of Impeachment issued by the House of Representatives.
They make a principle argument that the Constitution “requires that a person actually hold office to be impeached.” Since Donald Trump is no longer President, his attorneys claim “the present proceedings are moot and thus a nullity.”
Is this true? The view garnered the support of Republican Senator Rand Paul, who from the Senate floor read a key portion of the Constitution, Article 2, Section 4:
“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.”
The clear wording of this section indicates that it applies to a President, not a past-President. This position is also articulated by a former judge on the U.S. Court of Appeals, J. Michael Lettig.
The question of whether Trump can be impeached and convicted after he has left office is a procedural one. In other words, it does not speak to Trump’s specific actions and whether they point to impeachable guilt or acquittal. Instead, it is a question of whether the process of a trial after January 20 is legally supportable.
If the argument by Trump’s attorneys, Senator Paul, and Judge Lettig is correct, Congress should not proceed any further with the impeachment trial.
An opposing view is supported by legal scholar Laurence Tribe. He argues that the Constitution references impeachment in six places, but nowhere does it answer the specific question if a former President can be impeached. Therefore, he argues, there are distinct differences between if Trump can be “removed” from office, and if he can be “disqualified” (i.e., barred from running again). Obviously, Trump cannot be removed since he no longer holds the Oval Office. Disqualification, in his opinion, is still on the table.
We can evaluate the issue through a close reading of the Constitution and prior precedent. In addition, we can look to a legal theory known as the “absurdity doctrine.” In each of these evaluations, the position of the Trump attorneys appears unsound. A “late impeachment” can take place after an officeholder has left their post.
The Constitution does not specifically indicate whether an impeached official is released from impeachment if the term of office ends. However, we can glean an appropriate interpretation by evaluating the above-quoted Constitutional text in concert with the other key impeachment passage, Article 1, Section 3:
“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.”
Article 1 specifies two penalties, removal and disqualification. The Article 2 provision is limited in its scope to only one of these, the removal penalty: “The President, Vice President and all civil Officers of the United States, shall be removed from Office…” It is silent on the disqualification indicated in Article 1.
Thus, only Article 2 could be interpreted as limited to a current President rather than a past one. This is an appropriate and reasonable interpretation of both sections, taken together, rather than a slanted interpretation that seeks a particular result.
Hypothetically, if the Constitution were to state that “Impeachment and conviction shall apply only to the President, Vice President and all civil Offices of the United States,” then the Trump attorneys might have a reasonable argument. But it does not say this.
However, a key point must be addressed. If one of the sanctions has become moot (because Trump has left office) does that make the other one inapplicable? In legal terms, are the two penalties divisible, or if one falls, does the other one as well?
The Trump attorneys argue that the two sanctions are joined. Their argument is refuted by the court case of Waggoner v. Hastings. Hastings was elected to Congress in 1992 but had been impeached and removed as a U.S. District Court judge in 1989. Plaintiff Waggoner argued that the Constitution prohibited Hastings from being seated. However, the Senate order for his conviction stated that he was “removed from office.” It did not specify the other potential penalty of disqualification for future office. Because the Senate could have included a disqualification penalty but did not, Hastings was seated and continues to serve in Florida’s 20th district.
In short, the Court specifically held that the two constitutional provisions were divisible.
An opinion piece in the Wall Street Journal by reputable conservative attorney Chuck Cooper comes to the same interpretation of constitutional language as indicated here. He notes that, under Senate procedure, a two-thirds vote to convict “operates automatically and instantaneously to separate the person impeached from the office.” Only after the accused no longer holds office is a separate vote taken for disqualification. This sequence makes clear that a disqualification decision is to be reached only on former officials.
Trump’s attorneys have submitted a 78-page Trial Memorandum in support of the ex-President’s acquittal. They continue to make the argument about the unconstitutionality of a “late impeachment.” However, their argument appears to be undermined by a statement from Michigan State University law professor Brian Kalt, who indicates that citations in support of Trump’s argument badly misrepresented his work.
Based on these arguments, a full and careful reading of the Constitution provides a finding that impeachment and conviction can occur after the term of an officeholder has ended. The position of the Trump attorneys does not hold up.
The second area of analysis is to look at past impeachment proceedings that occurred after someone has left office.
The first impeachment occurred during the early days of the country. In 1797, Tennessee Senator William Blount was accused of conspiring to transfer Florida and Louisiana lands held by Spain into the holdings of Great Britain. The result of the Senate trial was less than clear-cut. The Senate voted to expel him under the provisions of Article 1, Section 5:
“Each House may…punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
Even though expulsion meant that the horse already had left the barn, the Senate persisted in wanting an impeachment trial. The impeachment was ultimately dismissed on the grounds that a senator is something different than the “civil officer” indicated by Article 2, Section 4 (quoted above).
The Blount case established a precedent only on a matter that is not pertinent to a Trump impeachment trial, namely that senators are not “civil officers.” On one side or the other, arguments might be made that Blount established a definitive result beyond this, but they would not be determinative if reviewed carefully.
Another notable and more germane case occurred in 1876, in the impeachment trial for Secretary of War William Belknap for corruptly accepting kickbacks. Minutes before the House voted on articles of impeachment, Belknap tendered his resignation to President Grant. Undeterred, the House unanimously voted in favor of the articles. After a majority vote, the Senate held its trial that specifically held that the resignation could not terminate an impeachment. The vote as to Belknap’s guilt was a majority in favor of conviction but did not reach the two-thirds required, so Belknap was acquitted.
The Belknap case settles the issue of a late impeachment as fully acceptable, but there is a wrinkle. One of the principal points of the Senate trial was this exact issue about a “late impeachment.” This was debated at length during Senate deliberations and was a significant factor in the acquittal:
“Of the twenty-five senators voting to acquit…twenty-two indicated that they did so because Belknap had already left office.”
So, the Senate vote in the Belknap case confirms that an impeachment trial can occur after the accused leaves office. More informally, it reaffirms that senators can use any criteria they choose (including bias or prejudgement or an unfounded “late impeachment” argument) in rendering a decision, subject only to the whims of the voting public in future elections.
A Matter of Ethics
Suppose an official cannot be subject to an impeachment trial after leaving office. In that case, there is implicitly a grace period in which that official can do virtually anything without penalty.
Illuminated by a theoretical example, if a President calls up the military to arrest members of Congress on January 19, the day before his term ends, would the House of Representatives plus the Senate be required to hold that President accountable only by rushing through impeachment and a conviction before noon on January 20? That seems nonsensical – especially considering the partisan gridlock that can bring impeachment proceedings to a lethargic pace.
Actions subject to impeachment should not be immune from a penalty because they occur in January rather than June. That would give officials a free pass for otherwise impeachable offenses during the last few weeks of their service. A corrupt or morally void President would have no disincentive to take substantial unconstitutional actions in an attempt to retain power.
There is an answer for this question in the law, known as the Absurdity Doctrine. When a strict interpretation of law leads to an absurd result, common sense is to be used. A free pass to an elected official just before the end of their term is clearly absurd.
The doctrine need not be applied in this case because the Constitution and prior precedent are consistent with a common-sense result. An impeachment trial after the term of an officeholder ends is legal in every respect.
What Will be the (Likely) Result?
The result of the Senate trial appears to be pre-ordained. After Senator Paul gave his speech arguing that a “late impeachment” is unconstitutional, the Senate voted to proceed, 55 in favor, 45 against. This appears to indicate that the Senate will not reach the two-thirds majority required for conviction.
The forty-five voting against proceeding were Republicans. When the time comes to vote on Trump’s guilt, many of these may use the Belknap argument in voting to acquit. That is, they will vote against removal on procedural grounds. There will be no proper support for that position based on the analysis here, but it can be used as “cover” rather than making a more difficult vote based on the substantive evidence in the case.
A more responsible vote would be based on the President’s actions – pro or con – in determining whether the evidence meets the standard (not necessarily for a criminal conviction, but) for “Treason, Bribery, or other high Crimes and Misdemeanors.
With Trump not being further sanctioned, there will be a less perceived detriment against some future unhinged President from taking actions even beyond what Trump has taken that resulted in his two impeachments. Our democracy will be less stable going forward.