The constitutional case for allowing late impeachment trials

Advocates making constitutional-law arguments like to say the Constitution is clear. Saying this doesn’t make it so. Case in point: the question of whether an impeachment case must be dismissed when the offender’s term expires. The Constitution is confusing here, not clear. There is a lot to weigh (I wrote a lengthy article on the subject in 2001). But on balance, the evidence firmly supports allowing impeachment proceedings against ex-officials.

Critics of late impeachability (the notion that officials can be impeached or tried even after leaving office) say that the key constitutional clauses make removal a necessary part of impeachment. But the text is ambiguous at best — it says nothing direct about the timing of impeachment trials. Article I, Section 3 provides that the maximum judgment in an impeachment case is removal plus disqualification; other consequences are left for the criminal justice process. The point of this provision was to depart from British impeachment, in which the full range of criminal penalties was available. The clause does not require removal; it just precludes the Senate from imposing penalties like fines, imprisonment or death.

Article II,  Section 4 says that the president, vice president and civil officers shall be removed if convicted of treason, bribery or other high crimes and misdemeanors. The clause does require removal if the convict is a sitting officer. Congress has read it as limiting impeachment to cover only offenses by the officials listed, but it has never read the clause to restrict the timing of their trials.

By analogy, consider a hypothetical corporate policy for disciplining corrupt executives. One rule says, “we’ll let the criminal law do what it will with you; our own response will go no further than firing you and blackballing you from the industry,” while another says, “any executive who we determine broke our rules will automatically be fired.” Now imagine an executive who, shortly before leaving the company, steals a million dollars. He cannot be fired; he is already gone. But the company could still respond and blackball the executive. The mandatory firing requirement protects the company from corrupt executives; it does not protect late-acting offenders from being blackballed.

Again, those who argue that late impeachment is impossible argue that the Constitution makes removal an inextricable part of impeachment — that the question before the Senate is whether to remove. But that is just assuming the conclusion. The Constitution does not use such language. Senate practice reflects this; senators vote “guilty” or “not guilty.” Their formal verdict is not “remove” or “don’t remove.” True, removal will be the most important thing in most cases. But that is different from saying that impeachment cannot exist without it. Disqualification matters too, and the Framers would not have included disqualification as a possibility if the worst offenders could avoid it every time simply by resigning and becoming unremovable. The Framers also designed impeachment to provide deterrence and accountability — two goals that are just as important at the end of a term as they are in the beginning and middle of it, but which cannot be met fully without late impeachment.

Critics of late impeachability also assert that whenever the Constitution refers to the president or other officeholders, it means only the current officeholder. But that is not right and misses important constitutional evidence. Provisions that grant powers obviously apply only to incumbents, but provisions that regulate the consequences of official actions can apply to ex-officials too. The each chamber can punish its members for disorderly behavior, but that authority has been used against ex-members for things they did as members. The Speech and Debate Clause gives senators and representatives legal immunity for their legislative acts, but that protection also covers ex-senators and ex-representatives for acts they performed as members. Other limitations like the Emoluments clauses and the Incompatibility clause apply only to current officials — but are unequivocally explicit about that timing.

The removal requirement was hotly debated at the Constitutional Convention. Some argued that the president “ought not to be impeachable whilst in office.” Others disagreed — and obviously prevailed, making it clear that an offensive sitting president would be removed. But as with the corporate analogy above, their point in providing for removal was to protect the nation from an abusive president, not to protect a bad, lame-duck president from disqualification.

Late impeachability itself prompted no objections; it was less consequential, so it occasioned no debate at all. But it was consistent with the general power to impeach as understood at the time. Late impeachment was a known feature of British impeachment practice. No state constitution at the time forbade it. Some explicitly allowed it. Two even required it, allowing governors to be impeached only after leaving office. When elements of British or state impeachment proved objectionable — and many did — the Framers were explicit about ruling them out. Late impeachment was a known feature, but not an objectionable one that required being excised.

Early impeachment practice confirmed this. The first federal case involved ex-Sen. William Blount in 1797. His defenders argued that as an expelled former senator, he could not be tried. Later, though, they conceded that the “former” part was not the problem; the “senator” part was. The Senate dismissed the case, establishing that senators are not “civil officers” subject to impeachment. Soon after, Kentucky (1803) and South Carolina (1807) impeached and convicted former officials, using state constitutional language that tracked the federal constitution.

The most significant federal precedent involved ex-Secretary of War William Belknap. The Senate decided specifically that it had jurisdiction, though it eventually acquitted Belknap. Subsequent impeachment cases have been dropped when the target resigned, but the House and Senate have pointedly spoken of choosing not to proceed, as opposed to being unable.

That remains the bottom line. The Senate can proceed against ex-officials, but whether and when it should choose to proceed is a different matter. Whether and when it should convict and disqualify an ex-official is still another. Still, the Senate has a firm basis for its jurisdiction here — notwithstanding protestations that the Constitution “clearly” says otherwise — and senators should acknowledge that.

Brian Kalt is a law professor at the Harold Norris Faculty Scholar at Michigan State University. He is the author of “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.”