Why I Think Presidents Can Be Impeached Even After Leaving Office
posted by Brian Kalt
A while back, I discussed the potential to impeach a president after he has left office. In my prior post, I concentrated on the practical questions—what factors would have to be in place before Congress would reach the unlikely stage of wanting to impeach an ex-president? The bottom line was that late impeachment is pretty unlikely, but not unimaginable.
In this post, I will concentrate on the legal argument for late impeachability. I will devote rather less space to the argument against it. Both arguments have much to commend them, and they are fleshed out (in excruciating detail) in an article that I published a few years ago, as well as a chapter in the book I am writing. As before, I am not suggesting that President Bush, Clinton, Bush, or Carter be impeached and tried—just that if Congress wanted to do so, they could.
In Article II, Section 4, the Constitution specifies that any civil officer of the United States must be removed from office upon impeachment and conviction for high crimes and misdemeanors. Critics of late impeachability take this to mean that a person must be removable to be impeachable. It’s a fair reading of the text, but a cleaner reading is that this clause only means to specify the penalty for sitting officers who are convicted. Under this reading, the clause does not limit Congress’s impeachment powers (which anyway are specified elsewhere, in Article I) to cases involving sitting officers.
Opponents of late impeachability often respond to this by saying that if Article II isn’t a limit on impeachment, it must mean that anybody can be impeached for anything. While it might be tempting to lobby Congress to impeach Bernie Madoff, though, this is not what impeachment is all about. The history of impeachment in England and America suggest that impeachment is concerned with public offenses by public officials; offenses “which may with peculiar propriety be denominated political,” as Alexander Hamilton put it in the Federalist Papers.
In other words, it is the nature of the offense, not the timing of the trial, that distinguishes impeachment. Only officers can commit impeachable offenses. If they commit such offenses, but leave office before Congress can finish the case, that doesn’t change the public nature of the offenses, or the appropriateness of having Congress as a forum to pursue them.
Thus, the true interpretive conflict is not between those who would impeach only sitting officers and those who would impeach everyone in the world. Rather, it is between those who see impeachment as protecting the office from the bad guy (which makes removal the key and makes late impeachment pointless) and those who see impeachment as the process for dealing with official misconduct qua official misconduct (which makes removal obviously important, but not the only basis for proceeding).
The Constitution provides for mandatory removal of sitting officers, but it also allows for another punishment: disqualification from holding future federal office. The presence of this other possibility not only makes late impeachment more likely to be worthwhile, it also provides some structural evidence in favor of late impeachability. If someone could avoid disqualification simply by resigning from office—perhaps five minutes before he knows the Senate will vote to convict him—then it would be pointless for the Constitution to have provided the penalty.
Allowing resignations to destroy Congress’s jurisdiction would also make a mockery of impeachment’s intended role as a form of congressional oversight. Consider that the president cannot preempt the impeachment of his subordinates by pardoning them; the Constitution makes that limit clear. This limit stems from a British case in which the king pardoned one of his ministers (Danby) to prevent Parliament from impeaching—and thereby investigating—the king himself. But if a president is restricted from pardoning away an impeachment, it would certainly be odd if he could preempt an impeachment simply by firing the official in question (and potentially rehiring him immediately onto the White House staff, or some other position that does not require Senate confirmation). Presidents are prickly about submitting to congressional jurisdiction for ordinary investigations, but there is no question that impeachment strips such protections away in a unique manner. Structurally, it makes little sense to say that a president facing impeachment could thumb his nose at congressional oversight simply by resigning, or by committing offenses near enough to the end of his term.
There is also historical evidence to support late impeachability. British precedent loomed large at the Constitutional Convention. At the same time that the Constitution was being drafted and debated, the British were impeaching and trying Warren Hastings, a former governor-general of India. It was a high-profile case, and the Americans drafting the impeachment clauses were aware of it. Impeachment was rare in Britain, and the only other case that century had, like Hastings’s, been a late impeachment. American state impeachment practice differed in important ways from the British tradition (significantly, some states not only allowed but actually required late impeachment), but the British influence was clear. The Constitution places several specific limits on impeachment in a conscious attempt to depart from British practice. However, late impeachment—an obvious, significant part of British practice—was left untouched in the text.
In the decades that followed, late impeachment was in the air. John C. Calhoun and ex-President John Quincy Adams both proclaimed themselves susceptible to it. President Grant’s corrupt secretary of war, William Belknap, was impeached despite having resigned just prior to the House vote. The House went ahead anyway, and the Senate debated late impeachability for weeks. The debate covered dozens of arguments from the text, history, and structure of the Constitution that I discuss in my article. Eventually, the Senate decided by a majority vote that it had jurisdiction over former officers and the trial went on. Fortunately for Belknap, there were enough opponents of late impeachability that his pursuers failed to attain the two-thirds vote needed to convict him. The vote was close, though, and the result is a precedent for the notion that people can be impeached and tried after leaving office, even if it is hard to convict them.
Since Belknap’s case, Congress has dropped case after case—for practical reasons—after the offender resigned. Even as it has done so, however, it has been careful to expressly reserve its power of late impeachment. In these matters, Congress is saying only that these men should not be impeached, not that they could not be.
Would the Supreme Court rule on a challenge to a late impeachment, or would they declare it a non-justiciable “political question”? It depends. That question could fill a whole other post. Suffice it to say that while the Court would defer to Congress here (and while I would vote that way were I on the Court for some reason), there is plenty of room for the Court to declare that Congress had overstepped its bounds, and that a late impeachment is not an “impeachment” within the meaning of the Constitution.
It is unlikely that an ex-president’s opponents in Congress would have large enough majorities to convict a president. If the new president doesn’t want to prosecute the old one, odds are pretty good that the old president has the support of either a majority in the House or one-third of the Senate too. (Interestingly, the only time in American history in which the party opposing the president had a House majority and a two-thirds Senate majority was during the presidency of Andrew Johnson; it is no coincidence that he was impeached and nearly convicted.)
It is hard enough to get two-thirds of the Senate to support conviction. Once you subtract the votes of the people who think that late impeachment is unconstitutional, it could become impossible. As I discussed in a previous post, several factors would have to line up just right for a late impeachment to go forward. Still, there is a strong case to be made that in the right circumstances, Congress can impeach and try an ex-president.