The Intersection Between the Former Presidents Act and the Impeachment Process

The Intersection Between the Former Presidents Act and the Impeachment Process

98-524 A
June 5, 1998
CRS Report for Congress
Received through the CRS Web
The Intersection Between the Former Presidents
Act and the Impeachment Process
(name redacted)
Legislative Attorney
American Law Division
Summary
Under the Former Presidents Act, as amended, 3 U.S.C. § 102 note, former
Presidents receive a monetary allowance for the remainder of their lives, except for
those periods when they hold appointive or elective office or a position in or under the
Federal government or the District of Columbia government at other than a nominal rate
of pay. The Act also provides for office staff and office space for former Presidents and
for a monetary allowance for a former President’s widow, under specified
circumstances, should he predecease her. The Act defines the term “former President”
to include persons who have held the office of President of the United States of
America, who do not currently hold that office, and whose service in that office
terminated other than by removal through the impeachment process. It appears that if
a President is tried by the Senate in an impeachment trial, but not convicted and
therefore not removed from office; or if he were to resign before or during an
impeachment proceeding, but before being convicted on an article of impeachment; he
would remain a “former President” for purposes of the Act.
The Former Presidents Act, P.L. 85-745, 72 Stat. 838,1 as amended, 3 U.S.C. § 102
note, makes provision for a monetary allowance for former Presidents, payable monthly,
at an annual rate equal to that of the head of an executive department as defined in 5
U.S.C. §101. The allowance is not paid during any period when the former President
holds an appointive or elective office or a position in or under the Federal government or
the District of Columbia government at other than a nominal rate of pay. The Act also
1 P.L. 85-745, 72 Stat. 838 (Aug. 25, 1958); as amended by P.L. 86-682, § 12(c), 74 Stat.
730 (Sept. 2, 1960); P.L. 88-426, Title I, § 124, 78 Stat. 412 (Aug. 14, 1964); P.L. 89-554, § 8(a),
80 Stat. 660 (Sept. 6, 1966); P.L. 90-206, Title II, § 224(c), 81 Stat. 642 (Dec. 16, 1967); P.L. 91-
231, § 7, 84 Stat. 198 (April 15, 1970); P.L. 91-658, § 6, 84 Stat. 1963 (Jan. 8, 1971); P.L. 95-
138, § 1, 91 Stat. 1170 (Oct. 18, 1977); P.L. 103-123, Title IV, § 6(a), 107 Stat. 1246 (Oct. 28,
1993); P.L. 103-329, Title V, § 531, 108 Stat. 2413 (Sept. 30, 1994); P.L. 104-52, Title V, § 523,
109 Stat. 495 (Nov. 19, 1995); P.L. 105-61, Title IV, § 409(a), 111 Stat. 1299 (Oct. 10, 1997).
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provides for selection, compensation and status of office staff for former Presidents, as
well as provision of appropriately furnished and equipped office space. A widow’s
allowance is also provided for the widow of each former President at a rate of $20,000 per
annum, paid monthly, if she waives the right to every other annuity or pension to which
she is entitled under any other Act of Congress. This allowance continues until the last
day of the month before she dies or remarries before age 60, and is not payable for any
period during which she holds an appointive or elective office or position in or under the
Federal government or the District of Columbia government at other than a nominal rate
of pay. In addition, the Act authorizes appropriations for security and travel related
expenses for each former President and the spouse of each former President, where the
former President or spouse was not receiving lifetime protection by the United States
Secret Service under 18 U.S.C. § 3056(a)(3); where the protection of the Secret Service
expired at its designated time; or where the protection provided by the Secret Service was
declined prior to authorized expiration in lieu of these funds.
Under subsection (f) of the Former Presidents Act, the term “former President” is
defined to include those who have held the office of President of the United States of
America, who are not currently holding that office, and whose service in that office “shall
have terminated other than by removal pursuant to section 4 of article II of the
Constitution of the United States of America”. Article II, Section 4, provides that:
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.
Under Article I, Section 2, Clause 5, the House of Representative has the “sole Power of
Impeachment.” The Senate, under Article I, Section 3, Clause 6, has the “sole Power to
try all Impeachments.” Article I, Section 3, Clause 7 states that:
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.
The decision as to whether to convict on each of the articles of impeachment in a given
proceeding must be made separately. A conviction on any one of the articles of
impeachment brought against an individual subject to impeachment is sufficient to
constitute conviction in the impeachment trial. Should a conviction occur, judgment is
limited to either removal from office or removal and prohibition from holding future
offices of public trust under the United States. The precedents in impeachment suggest
that removal may flow automatically from conviction in an impeachment trial, but that
the Senate must vote to prohibit the individual from holding future offices of public trust,
if that judgment is also deemed appropriate in a given case. Conviction on impeachment
does not foreclose the possibility of criminal prosecution arising out of the same factual
situation.
In light of the language in the Former Presidents Act, one consequence of removal
of a President from office as a result of a conviction in an impeachment trial would be
that the individual involved would no longer fit within the definition of “former

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President” for purposes of the Act. He would therefore not be eligible to receive the
benefits available under the Act’s provisions. It would seem to follow that his spouse or
widow would also be ineligible to receive those benefits available under the Act to the
spouse or widow of a “former President.” Because of the way in which “former
President” is defined in subsection (f) of the Act, it would appear also that if a President
were to be the subject of an impeachment trial, but not convicted on any article of
impeachment and therefore not removed from office, he would remain within the
definition of “former President” for purposes of the Act. Further, if a President resigned
from office before impeachment proceedings were initiated, or during an impeachment
proceeding, but before conviction on any article, he would not have been removed from
office pursuant to the impeachment process, and therefore he would still seem to fit within
the definition of “former President” under the Act.
2
2 It may be noted that resignation before impeachment proceedings are initiated or
completed may lead the House of Representatives or the House and the Senate to decide not to
pursue impeachment proceedings. See, e.g., H.Res. 803; Impeachment of Richard M. Nixon,
President of the United States, Report of the Committee on the Judiciary of the House of
Representatives, H.Rept. 1305, 93rd Cong., 2d Sess. (1974), in which the House Committee on
the Judiciary filed its report on its impeachment inquiry with respect to President Richard M.
Nixon with the full House, including a resolution impeaching President Nixon and setting forth
articles of impeachment against him. Because President Nixon resigned from office, the House
did not vote on the resolution and took no further action with respect to impeachment of the
former President. See also, the impeachment of George W. English, District Judge for the United
States District Court for the Eastern District of Illinois, 1925-26. There the House impeached
and voted articles against Judge English, and the House Managers appeared before the Senate to
advise the Senate of the House action and to begin the process which would lead to a Senate trial.
Judge English resigned six days before the scheduled start of the Senate trial on his impeachment.
The House Managers recommended to the House that the impeachment proceedings be
discontinued, while stating that the resignation did not affect the Senate’s authority to try the
matter. The House voted to accept the Managers’ recommendation. 68 Cong. Rec. 297 (1926),
discussed in a Committee Print entitled Constitutional Grounds for Presidential Impeachment,
Report by the Staff of the Impeachment Inquiry, Committee on the Judiciary House of
Representatives, 93 Cong., 2d
rd
Sess. 52-54 (Feb. 1974). The Senate, having been advised by the
House Managers that the House wished to discontinue the proceedings in light of Judge English’s
resignation, passed a resolution dismissing the impeachment proceedings. 68 Cong. Rec. 344,
348 (1926).
On the other hand, in 1876, Secretary of War Belknap resigned from office just before the
adoption of impeachment articles against him by the House of Representatives. The Senate, after
having given exhaustive consideration to the arguments of the House Managers and counsel for
the respondent, concluded that the former Secretary of War was amenable to trial by
impeachment for acts done in that office, despite his resignation from office before he was
impeached. Belknap’s demurrer to the replication of the House on the ground that the Senate
lacked jurisdiction to go forward with the impeachment was therefore overruled. III Hinds’
Precedents of the House of Representatives § 2007, at 321. It may be noted that Belknap was
acquitted of the charges brought against him in the articles of impeachment, those voting in favor
of conviction falling short of the requisite two-thirds of those Members present. This acquittal
seems to have reflected, in part, a residual level of concern on the part of some of the Senators
as to the wisdom of trying an impeachment of a person no longer in office. Two of the 37 voting
“guilty” and 22 of the 25 voting “not guilty” stated that they believed the Senate lacked
jurisdiction in the case. III Hinds’ Precedents of the House of Representatives §2467, at 945-46.

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