The Volokh Conspiracy
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Contra the Luttig Impeachment Thread
Judge Michael Luttig thinks a former president cannot be tried in the Senate. The argument is flawed.
Former Judge Michael Luttig is a very respected conservative jurist and for good reason. As a consequence, when he said on Twitter that a former president cannot be impeached in the House or put on trial in the Senate on impeachment charges, people on the political right paid attention.
A president cannot be impeached after he leaves office. Therefore, were the House of Representatives to impeach the President before he leaves office, the Senate of the United States could not thereafter convict the former President and disqualify him from future public office.
— @judgeluttig (@judgeluttig) January 11, 2021
If he is right, then Senate Majority Leader Mitch McConnell's decision to delay the impeachment trial until the presidential inauguration would be fatal to the possibility of convicting Donald Trump for high crimes and misdemeanors. There is no doubt that Luttig's Twitter thread will play a prominent role in the president's defense case and Republican senator judgments. We should take it very seriously. But it is wrong, and senators should not be persuaded by it.
Over at Lawfare, I walk through Judge Luttig's argument in detail and show why it is inconsistent with the constitutional text, the purpose of the impeachment clauses, and our constitutional history with impeachments. From the piece:
Of course, in Trump's case the impeachment is of a current officer, and so the question is whether the Senate loses jurisdiction if the impeached officer resigns or completes his term before the trial. But if the Senate has the power "to try all impeachments," then it would seem that it has the power to try all individuals whom the House has impeached and brought to trial regardless of whether that individual still holds public office. The House has frequently chosen to drop its impeachment efforts when an officer resigns; in those cases, it has generally either not voted on an impeachment resolution, not drafted articles of impeachment or not presented articles of impeachment to the Senate. But the fact that the House frequently concludes that its goals have been accomplished by the officer's resignation does not mean that the House could not have seen the impeachment through all the way to a Senate verdict.
It seems very likely that the article of impeachment would survive a motion to dismiss on jurisdictional grounds at a Senate impeachment trial of a former president Trump. It also seems very likely that the Supreme Court would decline to intervene to prevent a Senate trial or overturn a conviction. The real risk, I believe, is that this argument will persuade a sufficient number of Republican senators—or at least provide them with sufficient political cover—that the House fails to get the two-thirds of the voting senators that it will need to convict the former president.
It will always be an uphill climb to convict a president in the Senate. That climb will be even more difficult in a trial of a former president. No individual has ever been convicted in the Senate on charges arising from his conduct in a previously held office, though individuals have gone to verdict on such charges. The House managers will have their work cut out for them in countering Luttig's argument.