The Volokh Conspiracy

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The Senate May Hold an Impeachment Trial After President Trump Leaves Office

The precedents are clear, and Senate could bar Trump from holding future office.


Some have argued that it is futile or pointless for the House to consider impeaching President Trump again because it would be impossible (and perhaps unfair) to have a rushed trial prior to he leaves office on January 20. These arguments are understandable, but they are also wrong.

The claim that Congress loses the power to impeach and convict a federal officer once they have left office is belied by history and precedent. The Senate has conducted multiple impeachment trials of individuals who had left office. As Professors Brian Kalt and Frank Bowman wrote in the Washington Post:

the history, structure, rationale and application of the Constitution's impeachment clauses provide powerful evidence for "late impeachability." This evidence includes precedents: cases in which the House has impeached and the Senate has tried people who had already left office.

We also believe that, while impeaching someone who has left office is usually pointless, in some cases — perhaps including Trump's — it may serve important national interests. . . .

The two most important reasons to pursue a late impeachment are, first, to deter presidents' misbehavior during their waning days in office, and second, to permanently remove them from public life if their conduct suggests they would pose a continuing danger to the country if they ever returned to a position of national authority.

Impeachment represents an important disincentive to presidential misconduct. It would be odd to think that such misconduct was no longer worth deterring once the president was a lame duck. But that would be the effect of declaring misconduct unimpeachable if it's committed late enough in the term.

Impeachment—like criminal punishment—can serve several different purposes. One purpose is retributive, to punish bad acts. Another purpose is protective, to prevent the wrongdoer from committing additional wrongs and to protect the republic. This latter purpose is antiseptic and, where there is an ongoing threat, can justify taking more rapid or expeditious action than if the purpose is simply retributive. And if the purpose is to make clear that certain conduct is unacceptable, and should disqualify someone from holding future federal office, an impeachment trial can be held after that person leaves office.