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Why I Think Presidents Can Be Impeached Even After Leaving Office

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6 Responses

  1. A.W. says:

    Actually, I was very skeptical at first, but now i am coming around, but for reasons i think you are missing.

    The constitution doesn’t just specify removal as a remedy, but also “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” So imagine if this was an obviously crooked president, Richard Nixon. And imagine if he had just resigned and they were discussing whether to impeach him anyway. The value in doing so at that point would be to keep him from becoming a senator or whatever. if impeachment was limited to removal only, I think your argument would be fatally flawed regardless of the precedents.

    In practicality, however, it is really just a spiteful act, because overwhelmingly ex-presidents have just retired. I guess once you are president, your desire to hold public office is spent. So that is why even in the case of Nixon we didn’t impeach after he left office, becuase we knew he would never bother even to try to be dog catcher again.

    And, to be fair, impeaching to prevent further office holding makes more sense in the case of ex-judges.

  2. Brian Kalt says:

    A.W.,

    I didn’t miss disqualification–see ¶7. It is also a prominent part of the legal and practical arguments in my big article. But I’m glad you agree with me. And I agree that it removal were the only punishment, the argument would fall apart.

    Regarding ex-judges, it is worth noting the Alcee Hastings case. Hastings was a judge, was impeached and convicted, and was later elected to the House. But Congress is not included among the offices of “honor, trust, or profit” mentioned in the disqualification clause. Moreover, the Senate did not vote to disqualify Hastings anyway.

  3. A.W. says:

    Brian

    I was trying to remember Hastings’ name, but was blanking on it. So you did take the name right out of my mouth.

    But i wonder if it is the case that they chose not to impose that punishment on Hastings. i don’t read the constitution as requiring disqualification; i read that clause as merely limiting the remedies. So are we sure that this clause doesn’t apply to congress?

    I think it would be strange to say that being a congressman was not an office of “honor, trust or profit.” Well, with congress’s approval ratings, i guess it is less strange sounding than it would have been historically.

    But bad jokes aside, i could picture that being a term of art for, say, appointed office, but its not a meaning that leaps out at me.

    Especially when you consider that the Senate was, for about half our history, an appointed body. in that context its hard to see why a senator should not be subject to that disqualification clause but the secretary of the treasury should.

    But then just from a policy point of view, where the office is elected i an of two minds on the matter. on one hand, i think it is a disgrace that hastings is in congress. on the other, maybe we should say that if his voters want him, they should have him. i think the counterveiling argument is that corrupt officeholders are not only an evil in themselves, but could threaten democracy itself. if you are willing to take bribes, why not fix an election while you are at it?

    So to sum up my response, I’m not saying you are wrong about excluding congress from the disqualificaiton clause, i am just saying i am not convinced.

    And i am not sure whether that would be a good idea or a bad one, to disqualify impeached officials from congress, too.

  4. Brian Kalt says:

    A.W.,

    It’s not that Congress doesn’t get the “honor, trust, or profit” part, it’s that they don’t get the “office” part.

    The best evidence is the Incompatibility Clause (art. 1, § 6, cl. 2): “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” In other words, being a member of Congress is distinct from being a federal officer.

    Another clause that underscores the distinction is the Electoral College Clause (art. 2, § 1, cl. 2), which says: “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

    As a policy/structural matter, the distinction seems to be between appointment and election. If the voters in my district want to send me to the House, they should be able to do so.

  5. A.W. says:

    Brian

    You should know by now that i am cantankerous enough that if i admit you are right, it is well earned.

    So you are right on both counts.

    But looking at the people on CSPAN, are you sure its not really about honor or trust? /joke.

  6. Jim A says:

    The question remains today but is complicated by the fact that the President won a second term. And as of this writing, there is not time for an impeachment before the start of the second term and impeachment would, therefore, occur during the second term and have to be for wrongs committed during the first term.

    The fact that the president was reelected may not mean anything legally but politically it most likely would mean no impeachment proceedings.

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