The textualist case against trying Trump is compelling. A straightforward, holistic interpretation of the Constitution’s impeachment provisions offers no support for including persons other than specified officeholders. Proponents of extending impeachment to former officials take isolated constitutional provisions out of context and read too much into them. Originalist considerations also weigh against trying him. While former officials were impeachable under English law, the framers of the Constitution departed fundamentally from the English model regarding persons subject to impeachment. Historical and policy arguments favoring inclusion of former officials are weak at best, and in any event, cannot override the plain meaning of the constitutional text.
In the final analysis, three key points cannot reasonably be disputed:
- The Senate would try Trump not as President but as a private citizen.
- The Constitution grants Congress no power to discipline private citizens; that is the exclusive function of the justice system.
- There is no clear basis (to say the least) to read into the Constitution a sweeping exception for former presidents and the many other private citizens who once held public office.
The second Trump impeachment project is losing steam politically. Forty-five Republican senators recently voted against a trial, thereby confirming that conviction is out of reach. The Biden Administration and Senate Democrats show little enthusiasm for this exercise and are looking for ways to get it over with as quickly as possible. Meanwhile, debate over the constitutionality of continuing the impeachment process is intensifying. New op-eds pro and con appear daily (some referenced here). One recent statement in support boasted 150 signatures. While proponents of going forward have stronger numbers, they have the weaker case.
Textualist arguments
Proponents struggle to overcome the seemingly clear language of the Constitution limiting impeachment, trial, and conviction to incumbent officials. Article II, section 4 of the Constitution delineates those persons subject to impeachment as follows:
“The 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.”
Trump obviously no longer fits this description. He will not be tried or convicted as “President” and he cannot be “removed from office” since he holds no office. Thus, Article II, section 4 is now inapplicable to him by its express terms. The constitutional requirement that the Chief Justice preside “when the President of the United States is tried” affirms that Article II, section 4 means what it says and does not extend to former presidents. The framers included this requirement to avoid the conflict of interest that would arise if a president’s potential successor, the vice president serving as president of the Senate, presided. This applies only if the “President” being tried is the incumbent. Indeed, Chief Justice Roberts will not preside at a second Trump trial.
Proponents rely on another constitutional provision as authority to proceed against him. Article I, section 3, clause 7 states:
“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: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
They maintain that while a former president cannot be removed, disqualification remains possible. However, they read far too much into the provision. The language referencing disqualification is on its face nothing more than a limitation on “judgments in cases of impeachment” under Article II, section 4. It leaves Congress the option to add disqualification to removal, which follows automatically upon an impeachment conviction, but prohibits Congress from imposing any further sanction. The language gives no hint of conferring additional, free-standing jurisdiction on Congress to impeach and disqualify anyone other than a person who is subject to and removed under Article II, section 4. It says removal “and” disqualification, not removal “or” disqualification.
Several proponents take a different tack. They concede that only incumbent officials designated in Article II, section 4 are impeachable. However, they maintain that the Trump case can go forward because the House impeached him before his term expired. While the House had jurisdiction to impeach Trump during his presidency, how can the Senate act now that he is no longer in office? They find this authority in the Senate’s power under Article I, section 3, clause 6 to try “all” impeachments.
This is too heavy a lift for the word “all.” It cannot be taken literally to mean that the Senate has power to try whatever impeachments the House sends its way. The Senate dismissed the very first impeachment it received for lack of jurisdiction. (See below.) The most natural reading of Article I, section 3, clause 6 is that it does no more than assign the Senate sole and exclusive responsibility to try impeachment cases. It cannot reasonably be construed to enlarge the Senate’s authority to try impeachment cases or to convict anyone beyond the scope of Article II, section 4. The Constitution requires a two-step process of impeachment by the House and conviction by the Senate to impose any sanction. While Trump was subject to the House’s impeachment power as president, the fact remains that he is not now an officer subject to the Senate’s power to try and convict under the plain terms of Article II, section 4. It’s hard to see how the House’s jurisdiction has any bearing on the Senate’s.
One other, rather facile, argument is that the disqualification sanction, when imposed, applies only to former officials since any impeached incumbent is automatically removed from office by virtue of an impeachment conviction. But this ignores the obvious point that a valid impeachment conviction is prerequisite to disqualification of anyone and begs the question of how a former official is subject to Senate conviction under Article II, section 4.
In sum, the natural and holistic interpretation of the language and structure of the Constitution’s impeachment provisions from a textual viewpoint is straightforward: Article II, section 4 is the key substantive provision. It establishes who is subject to impeachment, trial, and conviction; states the grounds for impeachment; and mandates removal from office upon conviction. The other constitutional provisions cited above set limits and establish impeachment processes, but they do not expand the jurisdiction or authority of Congress beyond what is stated in Article II, section 4. Proponents of going forward read these other provisions in isolation and out of context, exaggerating their significance in the overall constitutional scheme.
Originalist arguments
Many proponents, including some conservatives, argue that reading former officials into the impeachment language is supported by the public meaning of impeachment at the time the Constitution was adopted. They assert that the framers of the Constitution looked to the English model and understood that former officials were impeachable under English practice. One academic maintains that it would have been “obvious” to the framers that the impeachment power covered former officials since they “imported” this power from England. The proponents note further that the English case of Warren Hastings, who had been impeached as a former official, was ongoing at the time of the constitutional convention and was referred to by the framers.
The originalist argument might have some force if the framers had imported the English impeachment power wholesale, but they did not. While they adopted some English features (grounds for impeachment, indictment by one chamber of the legislature and trial by the other), what they wrote into our Constitution bears little resemblance to the English model on the central issue here: who is impeachable.
The English Parliament of yore had power to impeach “any peer or commoner.” Thus, its impeachment power reached not only incumbent government officials but also former officials as well as private citizens having no current or previous connection to the government. Punishments also extended well beyond removal and disqualification up to imprisonment or death. Impeachment was one of several tools by which Parliament could inflict punishment of any kind on any citizen. Another tool was the bill of attainder. Thus, Parliament exercised virtually limitless power to dispense justice to perceived wrongdoers. It once went so far as to have a deceased former official exhumed, hung, and beheaded.
The framers took a fundamentally different approach by limiting impeachment to specified government officials and restricting its consequences to the non-lethal and largely remedial sanction of removal with the option of disqualification. In a total departure from the English model, they eschewed any role for Congress in disciplining private citizens. The circumscribed impeachment power clearly excludes private citizens and Article I, section 9 prohibits bills of attainder.
Actually, the understanding of the framers regarding impeachment of former officials is unknowable since they never discussed this subject during their deliberations. (The framers’ references to the Hastings case focused on the grounds for impeachment, not the fact that he had left office.) If any inference can be drawn, however, the more plausible one given the framers’ much narrower view of impeachment than the English is that they would not have envisioned it applying to any private citizens, even those who were once government officials. Proponents also note that some states provided for impeachment of former officials in the pre-Constitution era. However, they did so by explicit language in their governing law. Presumably, the framers of the federal Constitution would likewise have included explicit language if they meant to follow this model.
Congressional precedent
Proponents point out that Congress has in fact impeached and tried former officials. This is true, but the precedent value is limited. There are only two cases in the history of the United States in which the Senate tried officials who had resigned; neither resulted in conviction. One, the very first impeachment, involved a former senator, William Blount, whose case was dismissed by the Senate for lack of jurisdiction. It’s unclear whether the dismissal was based on the grounds that he was no longer in office or that senators were not subject to impeachment. The other involved an ex-secretary of war, William Belknap. After lengthy debate, the Senate voted 37-29 that he was subject to impeachment. However, lingering doubt over his impeachability was the decisive factor in Belknap’s acquittal.
These two cases also represent the exception rather than the rule. Congress usually ends impeachment proceedings if the official subject to them resigns. One prominent example is Richard Nixon. Furthermore, Congress has never before attempted to try any official after completion of his term. In any event, Congress’ assertion of power to impeach and convict former officials does not make it so. The courts would have the final say. While courts steer clear of reviewing how Congress exercises its impeachment authority, they probably would adjudicate a lawsuit challenging whether such authority existed in a particular case.
Policy arguments
Proponents of impeaching former office holders rely heavily on policy arguments. They claim that the value of disqualification by impeachment as a deterrent and accountability mechanism would be lost if officials could escape it by resigning, or as here, if the misconduct occurred too late in an incumbent’s term to allow completion of the process. However, disqualification ranks low on the scale of potential deterrents. The justice system offers far more serious punishments, and the same constitutional provision that limits impeachment remedies affirms that former officials remain subject to those punishments. While impeachable conduct need not be criminal, it usually is. In this case, Trump could possibly face prosecution for actions covered by the specific impeachment as well as his other dubious conduct.
Furthermore, extending impeachment to former officials presents anomalies of its own. It would subject private citizens including ex-presidents and numerous others to potential impeachment and disqualification for the rest of their lives simply because they once held federal office. In fact, there is no obvious limiting principle that would even restrict their impeachment to conduct occurring during their time in office.
Finally, as far as accountability goes, there is another, better way for Congress to hold Trump accountable than a largely partisan impeachment that is bound to fail: a concurrent resolution of censure. This is clearly constitutional and, if strongly but reasonably worded, would surely attract enough bipartisan support to easily pass both houses of Congress. It would also send a more unified and unifying message. Unfortunately, the chances of gaining significant Republican support for this alternative will fade if the dubious and divisive impeachment effort continues.