Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office

Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office

The U.S. House will be voting today to impeach Trump. It’s a done deal because Democrats have the majority, and probably will get about 20 Republicans to join them. Then it eventually heads to the Senate for trial, where Mitch McConnell has said the earliest a trial could be held under Senate Rules (unless there is unanimous consent to waive them, which will not happen) is an hour after Biden takes office on January 20.

I have seen discussion that McConnell and Schumer could agree to an emergency session, but that would mean a quick trial in a matter of days. Not sure how viable an option that is. [Update – reports indicate McConnell will not agree to an emergency session.]

Democrats are suggesting that the Senate could hold a trial even after Trump leaves office, perhaps as much as months later depending on what timing Biden thought benefitted his legislative agenda. The purpose would not be to remove Trump — he’d already be gone — but to preclude him from running again as part of the punishment. They also might seek to strip away his lifetime salary and security stipend.

The question is, can the Senate hold an impeachment trial and convict a president after the president already has left office. I think the plain wording of the constitution says such post-departure impeachment is not permitted. But there is a split of opinion.

Article II, Section 4, provides:

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.

So the premise of impeachment is that it is against someone who is the President, not someone who once was the President. Also, the purpose is removal, which cannot happen if someone already has left office.

Article I, Section II, Section 7, provides for the remedies available in the Judgment after Senate trial:

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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

So there are remedies beyond removal, but that presumes a proper conviction. It is those other remedies that Democrats and some Republicans want more than anything, but there is nothing in the language of the constitution to suggest that the post-conviction remedies expand the time scope of impeachment trial and conviction.

Former appeals court judge J. Michael Luttig writes in WaPo:

It appears that even if the House of Representatives impeaches President Trump this week, the Senate trial on that impeachment will not begin until after Trump has left office and President-Elect Biden has become president on Jan. 20. That Senate trial would be unconstitutional….

The Constitution itself answers this question clearly: No, he cannot be. Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him — even if the House has already approved articles of impeachment.

Therefore, if the House of Representatives were to impeach the president before he leaves office, the Senate could not thereafter convict the former president and disqualify him under the Constitution from future public office.

Alan Dershowitz expressed a similar view, that the power of the Senate to try an impeachment ends when Trump leaves office:

I was quoted in the NY Post also taking that position:

“You can’t impeach non-sitting public officials,” said former NYU Law professor Peter Rajsingh. “Once he’s left office, it’s a moot situation.”

Cornell Law professor William Jacobson agreed.

“Any such post-departure Senate trial would be a show trial for political purposes, not a legitimate constitutional trial,” he said.

While Trump was the third president to be impeached by the House but acquitted, no president has ever been removed from office by a Senate conviction — so legal scholars disagree on whether an ousted chief executive could lose his pension or Secret Service protection.

An argument can be made for such consequences, “but that assumes a proper conviction,” Jacobson said. “The language does not suggest that after leaving office, impeachment could be used to strip an ex-president of his pension and continuing benefits.”

In December 2019, when Republican Congressman Matt Gaetz suggested former President Obama could be impeached, WaPo gathered some scholarly takes, which basically concluded that it was unclear at best.

Yahoo News reports on some contrary views:

No court has definitively ruled on the matter of post-presidential impeachment. But while “impeachment is the exclusive method for removing a president from office,” as leading conservative scholar Michael Paulsen points out, “nothing in the constitutional text literally limits impeachment to present officeholders.” In fact, as Brian Kalt of Michigan State University College of Law argued in a 2001 article, “late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required.”

The possibility of punishment is key. “Structurally,” Kalt continued, “impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him.”

The Kalt research paper, while superficially concluding the Senate could conduct post-departure impeachment, emphasizes in its conclusion that it is uncertain:

Late impeachment provides a difficult problem of constitutional interpretation. It confronts an ambiguous portion of the text, which renders unclear whether the political focus of impeachment limits just the offenses and offenders who can be pursued, or whether it also restricts the timing of the proceedings as well. But if the text is unclear, the history underlying it is not. Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America, either in pre-1787 state constitutions or in the federal one. Indeed, some state constitutions made late impeachability explicit or even required.

Constitutional structure is also consistent with late impeachability. If the only purpose for impeachment were removal, then there would be no reason to conduct a late impeachment. But removal is not the only purpose of impeachment. Impeachment is designed as a deterrent to prevent offenses from occurring in the first place, and this deterrent effect would be severely undermined if it faded away near the end of a term. Moreover, convicted impeachees can be disqualified from future federal office, an important punishment that the offender himself should not be able to moot. Nor should the President be able to preempt a full investigation or full punishment; the Constitution forbids the President from using his pardon power to achieve these ends, and late impeachment is the only way to prevent an end run around this clear structural imperative. Although some opponents of late impeachment make allowances for these extreme cases by allowing some late impeachments, in reality, no constitutional basis exists for distinguishing between them.

Finally, precedent favors late impeachability. Admittedly, there is no wholly clear and binding authority. States construing similar provisions have come to mixed results. But the Senate, which, in the end, is the final arbiter of this question, has approved late impeachment. Senate opponents of late impeachment may have prevented convictions, but they have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate that officers can be impeached after they have left office.

In practice, late impeachment may rarely if ever prove worthwhile to pursue. Then again, one can imagine several scenarios in which it might. Even if no occasion ever arises in which late impeachment is worthwhile to pursue, this would place late impeachment in the same class as regular impeachment—more important to have available than to actually use. No federal executive official has ever been impeached and convicted, either while in office or after leaving it, but every federal officer is appropriately constrained by the possibility of impeachment, and it is only with late impeachment that this constraint can be properly whole.

Some also argue that the courts would not address the issue because it is a political question or a matter up to the Senate. That’s not true, it is a constitutional matter — May the Senate convict a president after the president has left office? That’s a threshold matter that I think SCOTUS would decide. If SCOTUS answered in the affirmative, then it would not nitpick Senate procedures, but whether the Senate even has constitutional authority is not up to the Senate.

So at best, supporters of post-departure Senate impeachment conviction could say there is an argument for it, but it’s complicated. Opponents merely need to point to the words of the Constitution.

Donations tax deductible
to the full extent allowed by law.