The Volokh Conspiracy

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Contra Alan Dershowitz on Late Impeachments

On the validity of an impeachment trial for a former president.


Alan Dershowitz recently published an op-ed in the Wall Street Journal arguing that the Senate did not have the constitutional authority to hold an impeachment trial for a former president. Today, I published a brief op-ed arguing the contrary position in the same venue.

From the piece:

Why would former officers be included within the impeachment power? Impeachment trials had long served as a vehicle for exposing and formally condemning official wrongdoing, or for a former officeholder to clear his name. Disqualification from future office was also an important penalty. A former Vermont lawmaker was impeached and disqualified from future state office for leading one of the tax rebellions that spurred the drafting of the U.S. Constitution. The American founders understood the history of demagogues and dictators corrupting republics and the need to exclude them from future office. As one delegate to a state ratifying convention put it, men who held public office should be "within the reach of responsibility" so that "they cannot forget that their political existence depends upon their good behavior."

Read the whole thing here (behind a paywall).