The Volokh Conspiracy
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In my last post, I highlighted the case for a swift impeachment and conviction of Trump, outlined by the unlikely alliance of famed conservative constitutional law scholar Michael Stokes Paulsen and prominent liberals Laurence Tribe and Joshua Matz. However, Senate Majority Leader Mitch McConnell has indicated that the Senate probably will not take up any impeachment voted by the House until after Trump's term ends on January 20.
In this post, I explain why an impeachment trial conducted after Trump leaves office would be both constitutional and serve valuable purposes.
I. The Constitutional Question
Nothing in the text of the Constitution bars impeaching and trying officials who have already left office. Article II, Section 4 of the Constitution indicates that "[t]he 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." Article I, Section 3, Clause 7 says that "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." Notice that the latter is a penalty that can be applied even to an official who is no longer in office.
Michael Paulsen, a leading conservative legal scholar and academic expert on impeachment summarizes why it makes sense to interpret this text as allowing impeachment of former office-holders as well as current ones:
There is a fair argument that the Constitution would permit impeachment, conviction and disqualification from future office even of a former president, in order to impose the punishment of disqualification. Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future. The impeachment power thus arguably extends to former officeholders.
As Paulsen notes, this argument is "contestable." But it nonetheless seems better than the opposite view, which would have the "almost absurd" consequences he describes. Michael Gerhardt, another leading expert on impeachment, similarly points out that "It certainly makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions."
This view is also backed by historical precedent. In 1876, President Grant's Secretary of War, William Belknap resigned to head off impeachment for corruption. But the House proceeded to impeach him anyway, and the Senate tried him. Ultimately, a majority of senators voted to convict, but not the necessary two-thirds supermajority.
Finally, the idea that former officials are subject to impeachment is backed by extensive original-meaning evidence, outlined by Brian Kalt in a thorough 2001 article that is probably the closest thing we have to an authoritative academic analysis of the issue.
I don't claim any of this resolves the issue beyond all doubt. But the arguments for the legality of this type of impeachment are strong. And, as a practical matter, it is unlikely that a court would ever invalidate such an impeachment, given courts' historic reluctance to overrule Congress on matters related to impeachment. In Nixon v. United States (1993) (not to be confused with the famous 1974 "Nixon tapes" case of the same name), the Court even ruled that issues involving impeachment procedures are "political questions" almost entirely beyond the reach of judicial review.
II. The Case for Doing it.
The fact that an impeachment after Trump leaves office would be constitutional doesn't necessarily mean Congress should actually do it. Some might ask: why bother? After all, Trump will be gone from the White House anyway. And impeachment could turn out to be a distraction.
But there will still be two good reasons to proceed with impeachment, even after Trump leaves the White House on January 20. The first is barring him from holding any other federal office in the future.
While Trump's reputation has been seriously damaged by recent events, he still enjoys substantial popularity within the Republican Party. If not barred, he could potentially run for president in 2024 and win the nomination again. And, as we saw in 2016, a major-party nominee—no matter how flawed—almost always has a real chance of winning the general election, especially if his opponent has significant political liabilities of his or her own. We should not take the risk of allowing Trump to return to power and commit further crimes and abuses as bad or perhaps even worse than those he perpetrated in his first term.
Disqualification would also prevent Trump from causing harm by serving in other federal government positions, such as in the House or Senate, or by being appointed a cabinet member by a future president. It seems unlikely Trump would try for any of these types of positions. But better safe than sorry, when it comes to such matters.
Barring Trump from holding office in the future seems undemocratic. If the people want to elect Trump (or anyone else), why shouldn't they be allowed to do so? But, thanks to widespread ignorance, partisan bias, and other factors, voters' judgment often has serious flaws. The Framers of the Constitution took a highly skeptical view of pure majoritarian democracy, and they imposed many constraints on it. Impeachment—including the associated disqualification power—is one of them.
Conservatives who like to remind us that "we are a republic, not a democracy" should be especially wary of rejecting disqualification merely because it is a constraint on democracy. That constraint is a feature, not a bug.
The other reason to proceed with impeachment after Trump leaves office is to deter similar abuses of power by future presidents. As I have emphasized in previous writings about impeachment (here and here), too many presidents have gotten away with serious violations of the Constitution and gross abuses of power without suffering any consequences. That problem did not begin with Trump, by any means. But it is imperative that we take action to curb it.
If Trump suffers no consequences for inciting an attack on the Capitol and pressuring officials to fraudulently reverse an election result, we can expect future presidents to imitate his example, if they think it might be advantageous. And perhaps even do worse.
It may seem unfair to make an example of Trump when several previous presidents have gotten away with violating the Constitution and otherwise abusing their power, without suffering any consequences. FDR got away with internment of Japanese-Americans in concentration camps, Woodrow Wilson engaged in massive violations of civil liberties, and—most recently— Barack Obama's started two wars without the congressional authorization required by the Constitution. And these are far from the only examples.
But the more lax we have been on such matters in the past, the more imperative it is to make up for lost time now. If we live in a neighborhood where criminals routinely get away with murder, the right way to deal with the next murderer we catch is not to let him go, but to impose a severe punishment, so as to show that the days of impunity for murderers are over. The same point applies here. We need to make an example of Trump in part precisely because we have been too soft on earlier presidential wrongdoing.
Finally, the idea that impeachment will be a distraction strikes me as a weak argument. Congress has broad power to structure an impeachment process as it wants. And an impeachment and trial focusing on events where the facts are clear and indisputable need not take more than a few days. It could even be done in one or two—still enough time for both sides to have several hours to present their arguments and evidence.
Lengthy procedures may be needed in a case where there are a lot of murky facts, or investigation is needed. But the facts of Trump's role in the Capitol assault and the effort to pressure Georgia officials are already on the public record, and evident for all to see. In addition, extensive due process is less necessary in a case where the defendant is threatened only with removal from a position of power (or deprivation of the opportunity to occupy such a position in the future) than in one where he or she stands to lose fundamental human rights, such as the right to life, liberty, or property (at stake in most ordinary criminal and civil cases).
Even if impeachment does create some degree of distraction for Congress, the tradeoff is worth it. Few if any matters are more worthy of congressional attention than deterring wrongdoing by the holders of the most powerful office in the land.
As I have said before, there may be prudential reasons to avoid impeachment, if it seems likely to be counterproductive, because there is not sufficient bipartisan support for it. But subject to that important caveat, there is every reason to proceed with impeaching Trump again, even if the process cannot be completed until after his term ends.