Trying Trump in a “late impeachment,” i.e., after he is no longer president, would be inconsistent with the plain language of the Constitution and the fundamental purpose of impeachment, which is to remove an incumbent from office. A process with the sole effect of punishing an individual by disqualification from future office would abuse congressional impeachment authority and resemble an unconstitutional bill of attainder. Pursuing impeachment of a former official who has left office is also a sharp departure from congressional norms, and conviction would be unprecedented in U.S. history.
The House’s second impeachment of President Trump so near the end of his term may be understandable politically. Trump’s behavior in the wake of his election defeat has been reprehensible and includes actions that are widely viewed as impeachable. His conduct cries out for condemnation. The House impeachment complied with the literal terms of the Constitution, even though it never had a realistic chance of leading to his removal from office. Continuation of this impeachment in the Senate, however, is a different matter. Since Senate action will not begin before Trump leaves office, he will be tried not as president but as a private citizen.
There is much debate over whether the Constitution sanctions late impeachment. Law Professors Laurence Tribe, Ilya Somin, and Brian Kalt and Frank Bowman, among others, say yes. Former Federal Circuit Judge J. Michael luttig says no. While outnumbered, Judge Luttig makes the far stronger case
Luttig bases his argument on a straightforward reading of the key constitutional text. Article II, section 4 of the Constitution, the primary authority governing impeachment, specifies which individuals are subject to impeachment and conviction as follows: “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.” Trump will not be the “President” if and when tried and he cannot be “removed from office” since he would occupy no office at that time. Thus, a Trump impeachment conviction would be outside the scope of the express terms and fundamental purpose of the Article II impeachment authority.
The law professors holding the opposite view offer elaborate argumentation but no persuasive rebuttal to Luttig’s textualist case. Their only counterargument with reference to Article II is that it does not explicitly limit impeachment to incumbent presidents. But there is no ambiguity in the text; it applies to the “President” and there is only one President at any given time—the individual who currently occupies that office. How could the language be any clearer? There is no basis to read it as including former presidents and the fact that it does not explicitly prohibit impeachment of former officials hardly constitutes affirmative legal authority to do so.
Late impeachment proponents cite another constitutional provision, Article I, section 3, which states in part: “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.” They maintain that removal and disqualification from future office via impeachment are two different things; while removal is inapplicable to a former president, disqualification is still relevant.
This is half right; the two are different in that impeachment can lead to a judgment of conviction and removal without disqualification from future office. However, the converse is not true. The language and structure of the Constitution clearly foreclose disqualification that is not part of an impeachment conviction within the scope of Article II. In other words, Article I, section 3 is not a free-standing, independent source of authority for Congress to disqualify individuals from future office; nor does anything else in the Constitution provide Congress with disqualification authority. Indeed, absent a valid impeachment conviction, a disqualification imposed by the Senate would amount to an unconstitutional bill of attainder.
Late impeachment proponents rely heavily on historical evidence to bolster their position. The short answer is that these considerations cannot override the clear meaning of the constitutional text. As discussed below, they are not persuasive in any event.
A Congressional Research Service (CRS) report (pp. 16-17) observes that Congress usually ends impeachment proceedings if the official subject to them resigns. One prominent example is Richard Nixon. Late impeachment proponents point to only two cases in the history of the United States in which the Senate conducted impeachment trials of officials who had resigned; both ended in acquittal. One involved a former senator who was acquitted on the grounds that senators were not subject to impeachment. The other involved an ex-secretary of war, William Belknap. According to Professors Kalt and Bowman, the Senate debated for over a month and ultimately voted 37-29 that he was impeachable. However, the CRS report suggests that lingering doubts by some senators over his impeachability probably was the decisive factor in Belknap’s eventual acquittal. In short, late impeachments are a rare exception and have never led to conviction. It’s also noteworthy that the Senate has apparently never before held an impeachment trial of a former official who completed his term.
Proponents also note that the framers of the Constitution were influenced by the British case of Warren Hastings, a late impeachment that was ongoing at the time of the constitutional convention. However, the framers’ interest in the Hastings case evidently focused on the grounds for impeachment rather than the late impeachment aspect. The proponents make no mention of anything the framers said on the subject of late impeachments in the context of the Hastings case (or otherwise) during their deliberations.
Finally, proponents advance various policy arguments in favor of late impeachments. Obviously, these arguments cannot override the clear import of the Constitution’s text. Anyway, late impeachment carries many downsides of its own from a policy perspective. As discussed here, a largely partisan impeachment of dubious constitutionality that will almost surely end in failure to convict does little to hold Trump accountable and may be dismissed by many as a political stunt. On the other hand, a concurrent resolution strongly rebuking Trump’s conduct probably would have drawn much more bipartisan support, easily passed both houses of Congress, and sent a unified and unifying message.
Whether Trump remains subject to impeachment is probably a moot point at this stage. No doubt the Senate will have the final say on whether a second impeachment trial goes forward and how it proceeds to conclusion. While Trump can move the Senate to dismiss the case, that motion will probably fail, particularly since Chief Justice Roberts won’t be present to weigh in on it. It seems inevitable that a second Trump impeachment trial would end in acquittal. However, he would have a much more viable challenge in the extremely unlikely event that the Senate convicted him and barred him from future office.
Courts steer clear of reviewing how Congress exercises its impeachment authority. Thus, in Nixon v. United States (Walter not Richard Nixon), the Supreme Court held that the way in which the Senate conducted the trial of an impeached federal judge was a nonreviewable “political question.” In Trump’s case, however, the question would not be how Congress exercised its impeachment authority but whether it had any such constitutional authority over a former official and now private citizen. The courts would likely accept such a case. The Nixon decision affirmed that “courts possess power to review either legislative or executive action that transgresses identifiable textual limits” and that–
“whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.” (citations omitted)
For all the reasons discussed above, it’s also likely that Trump would win. Accordingly, Trump will not necessarily cease to be a potential future political candidate even if Congress purports to disqualify him.