The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, memes have been floating on social media stating that if Trump is impeached, he would lose the benefits of a former President. For example:
DON'T FORGET. If we don't impeach Trump, he's entitled to a lifetime pension, lifetime Secret Service protection and a million dollar annual travel budget. Does a man who led an insurrection against his own country deserve such perks?
— Tea Pain (@TeaPainUSA) January 9, 2021
The Former Presidents Act (3 U.S.C. 102 note) provides that "former Presidents" will receive certain benefits:
- A monthly pension for life at the rate "of the head of an executive department."
- An office staff, with an aggregate salary up to $96,000 per year (I imagine this rate covers one full-time equivalent).
- "[O]ffice space appropriately furnished and equipped"
- The President's widow receives a $20,000 annual pension.
- Up to $1,000,000 per year for "security and travel related expenses." This appropriation covers secret service protection.
But this statute only applies to a "former President." The statute lists three factors to define this term:
(f) As used in this section, the term "former President" means a person–
(1) who shall have held the office of President of the United States of America;
(2) whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America; and
(3) who does not then currently hold such office.
As I read the statute, a President whose service is terminated by death would still be a "former President." His widow would be eligible for a pension. And a President whose service is terminated by resignation would also still be a "former President." Plus, a President who was removed pursuant to the 25th Amendment would still be a "former President." The only way that a President would not be a "former President" would be if his service was terminated "by removal pursuant to section 4 of article II of the Constitution of the United States of America." The key word here is "removal."
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.
President Clinton was impeached, but not convicted, or removed. Likewise, President Trump was impeached, but not (yet at least) convicted or removed.
If President Trump is impeached, convicted, and removed before January 20, he would not be a "former President." And he would not be eligible for the former President benefits.
If Trump is impeached, but not convicted and removed before January 20, he would be a "former President." If Trump is impeached before January 20, and convicted after January 20, he would still be a "former President." Why? A "former President" cannot be removed from a position he no longer holds. At most, former-President Trump could be disqualified from "hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States."
Update (1/10/20): I think another statute may provide secret service protection, even for a removed President.
3 U.S.C. § 102(g) provides:
There are authorized to be appropriated to the Administrator of General Services up to $1,000,000 for each former President and up to $500,000 for the spouse of each former President each fiscal year for security and travel related expenses: Provided, That under the provisions set forth in section 3056, paragraph (a), subparagraph (3) of title 18, United States Code [section 3056(a)(3) of Title 18, Crimes and Criminal Procedure], the former President and/or spouse was not receiving protection for a lifetime provided by the United States Secret Service under section 3056 paragraph (a) subparagraph (3) of title 18, United States Code; the protection provided by the United States Secret Service expired at its designated time; or the protection provided by the United States Secret Service was declined prior to authorized expiration in lieu of these funds.
This statute only provides to a "Former President." And the statute defines a "former President" as not removed.
But the cross-referenced statute, 18 U.S.C. § 3056, is not limited to non-removed Presidents. It provides:
(a) Under the direction of the Secretary of Homeland Security, the United States Secret Service is authorized to protect the following persons:
(1) The President, the Vice President (or other officer next in the order of succession to the Office of President), the President-elect, and the Vice President-elect.
(2) The immediate families of those individuals listed in paragraph (1).
(3) Former Presidents and their spouses for their lifetimes, except that protection of a spouse shall terminate in the event of remarriage. . . .
This statute does not define "Former Presidents" to exclude removed Presidents.
I think 3 U.S.C. § 102(g) reflects an earlier version of the statute, in which Presidents received lifetime protection. But, GAO observed that in "In 1994, the law was amended to rescind lifetime protection for former presidents and their spouses if the president's term of office began after January 1, 1997."
Perhaps the best way to reconcile these statements is that 18 U.S.C. § 3056 permits the Secretary to provide protection for a removed President. Though I'm not sure that the $1,000,000 would cover those costs.
Update (1/11/21): Daniel Dale of CNN wrote a fact-check column on the secret service claim. For once, Steve Vladeck and I agree on something–the law isn't clear.
Would Trump lose Secret Service protection if he was removed from office? It is not clear—to us or to two legal experts we consulted, law professors Stephen Vladeck and Josh Blackman.
There are two relevant laws that use different language on who counts as a "former president."
One law, the Former Presidents Act we mentioned earlier, specifically says that a president who gets booted by the Senate does not count as a "former president" for the purpose of certain post-presidency perks.
However, another law signed by Obama in 2013, the Former Presidents Protection Act, simply authorizes lifetime Secret Service protection for former presidents—without defining "former president" in any particular way.
It is not clear which definition the federal government or the courts would use when it came to deciding whether an impeached and removed Trump should get lifetime Secret Service protection. (The Secret Service did not respond to a request for comment.)
In summary, the tweet was too definitive on a point that is very much up in the air.