The Impeachment and Trial of a Former President

The Impeachment and Trial of a Former President

Legal Sidebari

The Impeachment and Trial of a Former
President
January 15, 2021
For the second time in just over a year, the House of Representatives has voted to impeach President
Donald J. Trump. The House previously voted to impeach President Trump on December 18, 2019, and
the Senate voted to acquit the President on February 5, 2020. Because the timing of this second
impeachment vote is so close to the end of the Trump Administration, it is possible that any resulting
Senate trial may not occur until after President Trump leaves office on January 20, 2021. This possibility
has prompted the question of whether the Senate can try a former President for conduct that occurred
while he was in office.
The Constitution’s Impeachment Provisions
The Constitution grants Congress authority to impeach and remove the President, Vice President, and
other federal “civil Officers” for treason, bribery, or “other high Crimes and Misdemeanors.”
Impeachment is one of the various checks and balances created by the Constitution, and it serves as a
powerful tool for holding government officers accountable.
The impeachment process entails two distinct proceedings carried out by the separate houses of Congress.
First, a simple majority of the House impeaches—or formal y approves al egations of wrongdoing
amounting to an impeachable offense. The second proceeding is an impeachment trial in the Senate. If the
Senate votes to convict with a two-thirds majority, the official is removed from office. The Senate also
can disqualify an official upon conviction from holding a federal office in the future; according to Senate
practice, this vote follows the vote for conviction. The House has impeached twenty individuals: fifteen
federal judges, one Senator, one Cabinet member, and three Presidents. Of these, eight individuals—al
federal judges—were convicted by the Senate. President Trump is the first individual that the House has
impeached twice. During the first impeachment process, the Senate voted to acquit him following a trial
for charges of abuse of power and obstruction of Congress.
Impeachment of Officials After Leaving Office
The Constitution does not directly address whether Congress may impeach and try a former President for
actions taken while in office. Though the text is open to debate, it appears that most scholars who have
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closely examined the question have concluded that Congress has authority to extend the impeachment
process to officials who are no longer in office. As an initial matter, a number of scholars have argued that
the delegates at the Constitutional Convention appeared to accept that former officials may be impeached
for conduct that occurred while in office. This understanding also tracks with certain state constitutions
predating the Constitution, which al owed for impeachments of officials after they left office. It also
accords with the British impeachment of Warren Hastings two years after his resignation as the governor-
general of Bengal. The impeachment occurred during the Convention debates and was noted expressly by
the delegates without expressing disapproval of the timing. While the Framers were aware of the British
and state practices of impeaching former officials, scholars have noted that they chose not to explicitly
rule out impeachment after an official leaves office. But the Framers nonetheless made other highly
specific decisions about the impeachment process that departed from the British practice, such as
requiring a two-thirds majority in the Senate for a conviction when the British system al owed conviction
on a majority vote.
That said, there are textual arguments against Congress’s authority to apply impeachment proceedings to
former officials. The plain text of the Constitution, which states that “[t]he President, Vice President and
al Civil Officers of the United States, shal be removed from Office on Impeachment ... and Conviction,”
could be read to support the requirement that the process only applies to officials who are holding office
during impeachment proceedings. Some have argued that the Constitution links the impeachment remedy
of disqualification from future office with the remedy of removal from the office that person currently
occupies; the former remedy does not apply in situations where the latter is unavailable. In his influential
Commentaries on the Constitution of the United States, Justice Joseph Story claimed that impeachment is
inapplicable to officials who have left their position because removal—a primary remedy that the
impeachment process authorizes—is no longer necessary.
But various scholars have taken issue with Justice Story’s reasoning, and others have argued that Justice
Story’s argument was primarily concerned with simply distinguishing the American practice from the
British, which al owed for impeachment of private citizens who had not been part of the government, and
who could potential y face severe punishments, including in some cases life imprisonment, as a result of
impeachment. Some have emphasized that the impeachment provisions of the Constitution provide that
the remedies of removal from office and disqualification are distinct components of the remedy for
impeachable misconduct. One scholar asserts that the two clauses of removal and disqualification can be
thought of as “fixing a minimum and maximum penalty” in cases of conviction in an impeachment trial;
consequently, an official’s resignation following an initial impeachment by the House but before
conviction in the Senate may not “deprive the people of the full measure of the protection afforded them”
through the additional remedy of disqualification. Scholars have noted that if impeachment does not
extend to officials who are no longer in office, then an important aspect of the impeachment punishment
is lost. If impeachment does not apply to former officials, then Congress could never bar an official from
holding office in the future as long as that individual resigns first. According to one scholar, it is
“essential” for Congress to have authority to impeach and convict former officials in order to apply the
punishment of disqualification; otherwise Congress’s jurisdiction would depend on the whims of the
individual who engaged in misconduct. Another scholar notes that the grave nature of the disqualification
punishment indicates that it should apply independently of the need for removal.
One might also argue that impeachment and trial of a former official is essential y impeachment of a
private citizen in contravention of the constitutional limits to impeachment. As noted earlier, under the
British model, Parliament could impeach anyone except the Crown, including private citizens. But the
Framers restricted the reach of impeachment in the American system to specific public officials: the
President, Vice President, and other civil officers. It may be argued that under the American system,
impeachment serves as a means to remove these officials from the machinations of government when
they engage in misconduct; upon leaving office, accountability for such misconduct would come through
the same mechanisms used to punish private citizens for misdeeds, including criminal prosecution.

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But others dispute the suggestion that an individual’s departure from government establishes a clean
break from the remedy of impeachment. They contend that the impeachment process may extend after an
official resigns or leaves office in order to promote accountability for government officials. The
Constitution established an impeachment mechanism to ensure that Congress has a means by which to
hold public officials accountable for their actions. The impeachment remedies, it has been argued, help
“protect the republic” from grave abuses of public office that may occur if an impeached official returns
to power, a purpose that would be foiled if officials can escape punishment by leaving office before the
impeachment process is completed. An impeachment trial for a former official for conduct that occurred
while the official was in office would appear consistent with that impeachment’s purpose—a remedy for
the abuse of governmental power by a governmental official. This view was apparently held by then-
Congressman and former President John Quincy Adams, who, during debate on the House’s authority to
impeach Daniel Webster for conduct that occurred while he had been Secretary of State, said in relation to
his own acts as President: “I hold myself, so long as I have the breath of life in my body, amenable to
impeachment by this House for everything I did during the time I held any public office.”
According to at least one scholar, the possibility of impeachment and disqualification from office for
former officials promotes accountability by deterring improper conduct the entire time they remain in
office. If the impeachment process becomes unavailable immediately after an official leaves his or her
position, there is an incentive for officials to conceal wrongdoing, and then resign as soon as misconduct
comes to light. Likewise, there would be no method of holding officials accountable for misconduct that
occurs late in an official’s term, no matter how egregious. This reasoning would seem to apply to
situations where an official resigns or otherwise leaves office in the midst of impeachment proceedings.
In the words of former President John Quincy Adams, the impeachment stigma “clings to a man as long
as he lives.” An official could avoid this stigma and possibility of being barred from future office by
departing from office before the Senate votes to convict.
Further, it is not always the case that a former official can be held accountable for impeachable
misconduct through the criminal justice system upon leaving office. Impeachment pertains to a broader
scope of conduct than traditional criminal behavior. Alexander Hamilton noted that impeachable offenses
were “political, as they relate chiefly to injuries done immediately to the society itself.” For example,
Congress has impeached federal judges for misconduct and corruption that was not necessarily criminal.
One scholar notes that impeachment after an official leaves office is important because it “reaches
offenses and provides punishment that the criminal process” does not.
More broadly, the Framers did not delineate with specificity the complete range of behavior that would
merit impeachment, as the scope of possible “offenses committed by federal officers are myriad and
unpredictable.” According to one scholar, impeachments are sometimes about much more than whether a
particular individual should remain in office. Instead, the process is “aimed at articulating, establishing,
preserving, and protecting constitutional norms.” At times, impeachment might be used to reinforce an
existing norm, indicating that certain behavior continues to constitute grounds for removal; in others, it
may be used to establish a new norm, setting a marker that signifies what practices are impeachable for
the future. In these cases, the “fate of the individual being impeached is less important than the message
being sent.” In similar fashion, other scholars have argued (in the context of impeachment following a
resignation) that the purpose of impeachment “extends beyond the scope of any particular case to its
effect on the constitutional structure of the state”; Congress’s power to convict following impeachment
can “have the effect of setting powerful precedential limitation on presidential conduct.” In other words,
even if an official is no longer in office, an impeachment conviction may stil be viewed as necessary by
Congress to clearly delineate the outer bounds of acceptable conduct in office for the future.

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Historical Practice: The Belknap Impeachment
While much of constitutional law is developed through courts analyzing the text of the Constitution and
applying prior judicial precedents, the Constitution’s meaning is also shaped by the other branches of
government through their decisions and practices. The Supreme Court has noted not only that “each
branch of the Government must initial y interpret the Constitution” when performing their “assigned
constitutional duties,” but also that once one branch develops a construction of its own powers, that
interpretation “is due great respect from the others.” This principle of developing constitutional meaning
outside of the courts is especial y applicable in the context of impeachment, where the manner by which
the House and Senate exercise their powers has been largely immune from judicial review. As such, the
process of attempting to resolve ambiguity that exists in the text of the Constitution’s impeachment
provisions may be pursued, though perhaps not always resolved, by recourse to congressional practice
and precedent. Although the relative rarity of impeachments of former officials means that it is difficult to
establish any “long settled and established” practice, both chambers appear to have previously viewed a
former official, at least one who has resigned, as subject to impeachment proceedings for conduct that
occurred while in office.
The House has never impeached, nor has the Senate ever tried, a former President. However, both
chambers have previously determined that they retain power to proceed against an executive branch
official that has resigned from office. The principal precedent is the 1876 impeachment of Secretary of
War Wil iam Belknap. After receiving al egations that Secretary Belknap had received payments in return
for appointing an individual to maintain a trading post in Indian territory, the House authorized a
committee impeachment investigation that quickly found “unquestioned evidence of malfeasance.” The
committee provided that evidence to the House, and though aware that Secretary Belknap had resigned
hours before, nevertheless recommended that he be impeached.
The subsequent debate by the full House included discussion of the chamber’s authority to impeach an
official that had previously resigned his office. Those arguing in support of the House’s authority focused
primarily on impeachment practice in England, where it was clear that former officials were subject to
impeachment. Those opposed asserted that English practice was of limited value since (as previously
noted), unlike the American system, the English system permitted impeachment of not only government
officials, but also private citizens. Ultimately, the House approved (without objection) the resolution
impeaching Secretary Belknap, establishing the House’s position that it may impeach an official who
does not currently hold office.
The impeachment then moved to the Senate for trial, where Secretary Belknap asserted through counsel
that because he was now a private citizen and no longer an officer of the federal government, the Senate
lacked the authority to bring him to trial. The House managers asserted otherwise, arguing that because
Belknap was Secretary of War “at the time al the acts charged in said articles of impeachment were done
and committed ... the House of Representatives had power to prefer the articles of impeachment, and the
Senate have full and the sole power to try the same.”
The Senate resolved to settle this threshold question of jurisdiction before proceeding further in the trial.
The chamber heard three days of arguments from both sides and deliberated in secret for more than two
weeks, after which it determined by a vote of 37 to 29 that Secretary Belknap was “amenable to trial by
impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he
was impeached.” The presiding officer then deemed the articles of impeachment against Belknap
“sufficient in law.” Much like the importance of the House vote to impeach Secretary Belknap, this vote
established the Senate’s view that impeached former officials can be subject to trial in the Senate.
Following the trial, a majority of Senators voted to convict Belknap, but no article mustered the two-
thirds majority necessary for conviction. Notably, a number of Senators voting to acquit indicated that
they did so because of their belief that the Senate lacked jurisdiction over an individual no longer in

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office. In the eyes of the House managers, these votes reflected the fact that a “minority of the Senate
refused to be governed by the deliberate judgment of the majority, that it had jurisdiction” and as a result,
“prevented the conviction of the defendant” by the required two-thirds vote. The House .anagers also
reflected on the legacy of the Belknap impeachment, concluding that notwithstanding Belknap’s acquittal:
[T]he managers believe that great good will accrue from the impeachment and trial of the defendant.
It has been settled thereby that persons who have held civil office under the United States are
impeachable, and that the Senate has jurisdiction to try them, although years may elapse before the
discovery of the offense or offenses subjecting them to impeachment.... To settle this principle, so
vitally important in securing the rectitude of the class of officers referred to, is worth infinitely more
than all the time, labor, and expense of the protracted trial closed by the verdict of yesterday.

In more recent history, both the House and the Senate have general y decided not to proceed with the
impeachment of an official who has resigned their office. At times, it appears that this decision is based
on a judgment that removal is often the primary, if not the sole goal of an impeachment trial. For example,
following dismissal of the trial of Judge Samuel B. Kent in 2009, the then-Senate majority leader stated
that “[a]l are in agreement that, with the resignation of Judge Kent, the purposes of the House’s
prosecution of the Articles of Impeachment against Judge Kent have been achieved.... It is agreed that no
useful purpose would now be accomplished by proceeding further with the impeachment proceedings.”
But it may be that such decisions were prudential judgments about the efficacy of continuing proceedings
rather than constitutional determinations that the House or Senate lacked the authority to impeach,
convict, and disqualify a former official. In perhaps the highest-profile example, no impeachment vote
was taken following President Richard Nixon’s resignation, which came on the heels of the House
Judiciary Committee reporting articles of impeachment to the House. It is not clear how seriously
Members considered the possibility of proceeding with the impeachment despite the resignation, but
Nixon had already served two terms as President, so there was no possibility that he could return to that
office in the future. Senate impeachment proceedings against various judges have also been terminated
following resignations. In one, after impeached Judge John English resigned prior to the Senate
commencing his trial, the House instructed its managers to communicate to the Senate that “in
consideration of the fact that [Judge English] is no longer a civil officer of the United States ... the House
of Representatives does not desire further to urge the articles of impeachment heretofore filed in the
Senate.” But that House action occurred only after the House managers made clear their position that “the
resignation of Judge English in no way affects the right of the Senate, sitting as a court of impeachment,
to hear and determine said impeachment charges.”

Author Information

Jared P. Cole
Todd Garvey
Legislative Attorney
Legislative Attorney

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