The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Representative Matt Gaetz was widely mocked yesterday for suggesting during the impeachment hearing that "maybe it's a different president we should be impeaching," by which he meant the one who left office in January 2017. He soon clarified via Twitter that he did indeed mean to say the House can impeach former presidents.
You actually can impeach a former President, FWIW
— Matt Gaetz (@mattgaetz) December 4, 2019
I think he is probably right about that.
This is not an easy case, and there is not a scholarly consensus on this point, but it is plausible that it is within the authority of the House to impeach former federal officers.
Rather awkwardly, the framers separated the impeachment power into several different clauses sprinkled across the Constitution. Notably, the Constitution grants to the House of Representatives the "sole power of impeachment." It separately specifies that the president, vice president and other civil officers shall be removed if convicted upon an impeachment, and limits the Senate to doing no more than removing from office and disqualifying from future office when rendering a judgment in an impeachment trial.
In practice, disqualification from future office has rarely been an issue in federal impeachments. The House has rarely requested it. Only three officers, all judges, have been disqualified from future office by the Senate. Removing a problematic officer has often been treated as the sole purpose of the impeachment power, but I think that is a mistake. The impeachment power can and has served other purposes than just removing a sitting officer. If removal is the only purpose an impeachment can serve, then there would never be any point in the House voting to impeach when it knew the Senate would not convict. But sometimes it makes sense to impeach even when removal is not an available option.
When the framers entrusted the House with the power of impeachment, what did they think that power encompassed? They did not say very much about that. But the English parliamentary practice from which they were borrowing did not restrict impeachments to current officeholders. When the impeachment power was transplanted to American shores, it was explicitly shorn of some British features. Americans did not impeach private citizens. American legislatures were prohibited from imposing punishments other than removal and disqualification on those who had been convicted in impeachment trials. American legislatures were restricted to impeaching only for a limited type of offense.
But some state constitutions explicitly authorized their legislatures to impeach former officers, sometimes while imposing a time limit on how long the former officer was at risk of impeachment, and none prohibited it. The federal constitutional framers did not clearly rule it out, though they were aware that such applications were understood to be within the scope of a legislative power of impeachment.
If impeachments are a "grand inquest" into the conduct of public officials, then there is no necessary reason why that inquest should be cut off by an officer's departure from office. If impeachments are to deter public officers from gross misconduct, then leaving the door open to a legislature scrutinizing the conduct of former officers is potentially useful. If impeachments are to protect the republic from dangerous officeholders, then the ability to disqualify a former officer who has been demonstrated to have committed grave abuses of office in the past might be valuable.
One can imagine situations in which such a use of the impeachment power would be justifiable. In 1862, the Senate for the first time disqualified someone from future federal office when it convicted Judge West Humphreys on articles of impeachment that included the charge that he "did unlawfully act as judge of an illegally constituted tribunal within said State, called the district court of the Confederate States of America." If Humphreys had bothered to send in his resignation rather than simply neglecting his duties as a federal judge under the U.S. Constitution, the House might not have taken the time to impeach him. But it would have been understandable if Congress had determined that even if he had resigned that the secessionist Humphreys still needed to be barred from any future federal office of honor, trust, or profit.
In 1876, Secretary of War William Belknap resigned as the House was considering impeaching him for a newly revealed corruption scandal. The House impeached him anyway, and the Senate rejected a motion to dismiss the case for want of jurisdiction over a former federal officer. Belknap was not convicted, in part because some senators doubted their authority to do so. Condemning Belknap's actions and disqualifying him from future office seemed a sufficient reason to proceed for many in the House and Senate.
If Congress in 1974 had imagined the possibility of President Richard Nixon rehabilitating his reputation sufficiently to have a chance at holding a future office, it is not hard to imagine a bipartisan House and Senate steaming ahead with an impeachment and trial in order to bar that possibility through a judgment of disqualification. Worried that an infamous former officeholder might eventually live down his infamy, Congress might seek to make that recovery more difficult through the impeachment process.
The House practice manual accepts that the impeachment power extends to former officers, though it admits that since removal is generally the "primary objective" of an impeachment the proceedings have usually been brought to an end if the officer resigns. Brian Kalt has provided the most comprehensive analysis of "late impeachments," and I find him persuasive.
But this is also a good opportunity to reemphasize the importance of distinguishing what a government official or institution can do from what it should do. It is possible to abuse your discretionary authority. An act can be wrong and contrary to the health of the constitutional regime even if it is within a government official's lawful authority. An officer can be impeached for such an act. Members of Congress cannot be impeached, but they can certainly be condemned for such actions.
The House may have the constitutional authority to impeach a former president, but such acts are highly disfavored within our constitutional practice and the House would have an extraordinary argumentative burden to bear to justify such an action. It might be the case that the House should impeach a former officer so as to fortify constitutional norms and send a clear message to other officers that the behavior in question is unacceptable. But we should not want to go down the road of simply using the impeachment power to settle scores with the leaders of the other political party. It would quickly squander the solemnity and weight of the impeachment power while heightening partisan tensions and fostering greater animosity and distrust.
Representative Gaetz is probably right that the House could impeach a former president, but that does not mean the House should.