Can President Bush Be Impeached After He’s Gone?
posted by Brian Kalt
Can presidents be impeached after they have left office? In a 50,000-word article a few years ago, and in Chapter 6 of the book I am writing, I argued in favor of what I call “late impeachability,” and identified the (admittedly rare) contexts in which it might make sense.
I’ll do the same here, albeit in much, much less detail. In this post, I’ll talk about practical considerations (i.e., the “Why bother?” question). In a few days, I’ll post about the legal arguments supporting late impeachability (i.e., the “Whatchoo talking about, Willis?” question).
As with my post on presidential self-pardons, my writing on this question has been consistent over two presidencies; I have no partisan axe to grind. In any case, I don’t support any efforts to impeach President Clinton or President Bush. This post’s title is thus a bit dodgy (though presumably it succeeded in getting your attention).
My draft chapter starts out with this hypo, which touches on many of the practical considerations, and previews some of the legal arguments:
A year into his term, President Jack Martin is embroiled in the most scurrilous scandal in presidential history. Rumors swirled for several months before Martin finally gave into public pressure and appointed an independent counsel. It soon becomes obvious why he had been so reluctant: the independent counsel quickly uncovers mountains of evidence of President Martin’s lucrative and corrupt relationship with Ted McGee.
McGee—a lobbyist and longtime friend of the president—collected tens of millions of dollars in “lobbying fees” from people, companies, and governments, and turned over half of the money to President Martin. Without fail, McGee’s clients benefited from presidential attention to their needs almost immediately after paying their bribes. As desired by McGee’s clients, Martin promoted or vetoed legislation, appointed or fired officials, and more. In the worst instance, Martin ordered the military to share certain top-secret missile technology with a less-than-steadfast ally.
It is a national disgrace. The independent counsel indicts McGee and fifteen of his clients, and she prepares a comprehensive indictment against Martin to move forward as soon as he is out of office. The House Judiciary Committee begins considering articles of impeachment, and there seems to be little doubt that Martin will be impeached and convicted swiftly.
Seeing the handwriting on the wall, President Martin resigns. He is indicted and prepares to defend himself in court. His successor, President Barker, clearly had no involvement in the scandal, and at age seventy-three he promises not to run for a full term. One of Barker’s first acts as president is to pardon President Martin, on condition that Martin surrender all of the money mentioned in his indictment (which totals more than fifteen million dollars), plus an additional 20 percent, to the government. Addressing the nation, President Barker says that Martin has suffered enough and that the United States needs to move on: “A presidential prosecution would take a long time and be difficult to conduct evenhandedly. It would produce more spectacle than justice, and it would distract us at a time when we need to refocus our attention on the real problems facing Americans.” Martin accepts the deal.
There is an uproar. Some people—mostly members of Martin and Barker’s political party—agree that the country needs to move on, and they are satisfied that Martin has suffered enough. Most Americans disagree and think that Martin should go to prison. But with the pardon, and with little prospect of a state prosecution, there is no way for this to happen.
Luckily for the disgruntled majority, the opposition party controls both chambers of Congress, and they are not keen to let go of the Martin scandal. For one thing, there are still a lot of unanswered questions about Martin’s conduct. For another, Martin’s crimes are a political goldmine, not least because the midterm congressional elections are only a few months away. Multiple congressional committees hold hearings on Martin’s bribes.
Subpoenaed by three separate committees, ex-President Martin refuses to testify. He submits a written statement arguing that the separation of powers precludes Congress from forcing him to testify under oath about his actions as president. He concedes that he can be subpoenaed by the independent counsel pursuant to her criminal investigation (or what’s left of it, anyway), but he rules out providing any documents or live testimony to Congress.
It was bad enough that Martin shamed his country and his office and avoided prison. Now that he is adding insult to injury by thumbing his nose at Congress, the House’s leaders decide to revive Martin’s impeachment (which is beyond the reach of a presidential pardon). It is the only way for them to vindicate their authority, and the only hope for holding Martin accountable.
But Martin has left office, and the strong majority that would like to punish him is divided. Many say that impeachment is only for removing people from office, and that it is legally impossible to impeach the ex-president. Moreover, whether or not it is legally possible, many members of Congress ask what the point is. The most common answer—that it will keep Martin in the news during the congressional election campaign—seems cynical and turns off a lot of people who would prefer that Congress do something more productive.
Still, there are enough people who harbor enough anger at Martin that it looks like the impeachment will go forward. The leaders of the effort argue that it is perfectly constitutional to impeach someone who has left office. The constitutional text allows it and there is ample historical precedent, they say. In addition to being removed from office, convicted impeachees can also be disqualified from holding office in the future, and while it is unlikely that Martin will ever work in government again anyway, his foes would still like to brand him with this mark of shame.
If Martin were clinging to office, his impeachment in the House and conviction in the Senate would be a sure thing. But late impeachment is controversial, and it is obvious that the issue has to be settled before the case can go anywhere. The hottest political issue in the country is now a constitutional-law issue, and the nation’s top politicians—and maybe its top judges—stand ready to adjudicate it.
Admittedly, the conditions under which Congress would ever bother to pursue an ex-president are rare. Then again, the conditions under which it would pursue a sitting president are rare too. The core importance of impeachment, late or otherwise, is not the cases that arise, it is the cases that don’t. No president has ever been removed from office through impeachment, but every president has been constrained by the possibility of it. Imagine a United States in which the president knew that no matter what he did, he would be able to remain in office for four years. It seems obvious that the temptation to abuse power would occur more often in that system than it has in our real one.
Without late impeachment, this deterrent effect would fade fast near the end of a president’s term. If impeachment cannot touch a president once he has left office, then it provides him with an incentive to behave only early in his term, or to conceal his wrongdoing long enough to run out the clock. By contrast, if the president is subject to impeachment for the rest of his days, he will have an added incentive to conduct himself appropriately to the very end of his term. If he fails to do so, he could at least face scrutiny.
So like regular impeachment, late impeachment is worth discussing even though it is highly improbable. For those who are unconvinced, here are some factors that I think could lead to a late impeachment actually happening.
First, the criminal penalties facing the president might be insufficient. There might be constitutional barriers to criminally investigating the president; the offense might not be a crime; or the ex-president could have been pardoned, cut a deal, or just left alone. (Significantly, no prosecution was ever brought against the obviously corrupt Secretary of War William Belknap—who was late-impeached but acquitted by five votes.) Congress might feel the urge to punish the ex-president as only it can, such as disqualifying him from future office. If it tweaks the presidential pension laws a bit, it could also use late impeachment to strip an ex-president of retirement benefits, as Senator Specter suggested be done to President Clinton in 2001 (had there been harder evidence against Clinton in the Marc Rich case, Specter’s comments might be more than the less-than-a-footnote they are today).
Second, the impeachment would need to represent some sort of perceived political advantage for Congress. This is not inconsistent with the first point—going after bad guys can be popular—but unless the partisan zeitgeist in Congress is just so, pursuing an ex-president might seem like a waste of time. On the flip side, though, pursuing a sitting president can be unpopular too. Late impeachers might actually be emboldened once they can no longer be accused of trying to force a duly elected president from office; once that consequence is off the table, the case can just be about going after the bad guy. The bottom line is that Congress does what it thinks makes sense politically, so a late impeachment would have to make sense politically. Gerald Ford, pursuing Justice Douglas, famously said that an impeachable offense is whatever a majority of the House says it is. He might better have noted that an impeachable offense is only what a majority of the House can agree is worth pursuing, which is no small barrier to overcome—as the case of the unimpeached Justice Douglas shows us.
Third, Congress might act to protect its prerogatives. If the president left office to avoid impeachment, or if the ex-president was stonewalling a lower level congressional investigation, Congress might feel as though late impeachment was the only way to vindicate its authority. To take a current example, I can easily imagine (1) President Obama deciding not to pursue criminal charges against President Bush and his administration over the torture and surveillance controversies; (2) a netroots-led partisan groundswell that spurs the House to pick up the matter, as the only authority with the power to investigate and make public the former administration’s actions; and (3) impeachment emerging as the only way to break through the ex-president’s assertions of privilege and hold him accountable. Not my cup of tea, but I can still picture it.
Of course, the president would likely challenge congressional authority to impeach and try him. The courts might take the case, or they might leave it to Congress to sort out. Heaps of arguments about the Constitution’s text, structure, history, and precedents would fly back and forth in the courts, Congress, and public square. But all that will have to wait for my next post.