Pondering the Constitutionality of Impeaching an Ex-President
Thomas Bertron | February 2021
Former President Donald Trump answering questions with Sen. Mitch McConnell in October 2017
mpeachment is the remedy provided in the United States Constitution to address serious offenses by the executive. It is the first step in removing an elected official from office who is suspected of committing an offense worthy of expulsion from office, and has the potential to disqualify the official from ever serving in an elected role again.
Former President Donald Trump, the first President to be impeached twice in U.S. history, has been impeached for inciting an insurrection on January 6, 2021, which resulted in the deaths of at least five people, including a police officer. Many argue, however, that the impeachment proceedings are unconstitutional due to the fact that he is no longer serving in office as President of the United States. The question is, is their argument substantiated?
In the Constitution, the word “impeachment” is used just twice. In Article II, Section 4, the specifics of the impeachment process for removal of executive officials from office is outlined: “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”. Defenders of the former president point out that a plain reading of the section does not mention whether the official in question is still serving their term at the time they are being impeached. The ambiguity casts doubt on whether it is constitutional to impeach former President Trump.
At the state level, there have been executive officials impeached while in office and still legally tried after the end of their term in office. In 1917, Texas Governor James E. Ferguson was impeached, and resigned before the state senate convicted him. When he tried to run for office in 1924, the Texas Supreme Court held that he was convicted of his impeachment, even though he had no longer been in office, forbidding him from running for office again. Ferguson stated that, since his conviction was made after the end of his term, he was not actually impeached. A court case followed, with the Texas Supreme Court reaffirming its judgement: “under the Constitution the Senate may not only remove the offending official, — it may disqualify him from holding further office, and with relation to this latter matter, his resignation is wholly immaterial”. Essentially, Ferguson’s no longer being in office was not a factor in determining the constitutionality of his impeachment . He had been in office when he committed crimes that were subject to impeachment, and so he was forced to face the consequences.
It is also noteworthy that two early state constitutions did not allow a sitting state executive to be impeached. It was only after their term had ended that an impeachment trial was allowed to commence. One state, Virginia, decreed in its Constitution of 1776: “The Governor, when he is out of office, and others, offending against the state, either by mal-administration, corruption… shall be impeachable by the House of Delegates”. It was feared that the legislature would use the threat of impeachment during an executive’s term in order to manipulate him while still in office. By limiting the time at which impeachment was constitutional to after the executive’s term, the writers of the Virginia Constitution could be seen as attempting to bar impeachment from being used for political reasons.
This anti-partisan rationale behind only allowing an executive to be impeached after leaving office can be seen in Alexander Hamilton’s Federalist No. 65. Hamilton was concerned that the use of impeachment would at times antagonize the country’s best interests:
In other words, Hamilton feared that the use of impeachment would be politically motivated to damage an opposing party.
Thus we see that impeachment of an executive after the end of his or her term was not only normalized at the state level and among the Founders: it was thought to be the only way an executive should be impeached in the first place.
While the Constitution does not explicitly state whether impeachment is only intended to be imposed upon a civil officer while still serving his or her term, these pieces of evidence, at the state level and produced by the Founders, suggest that impeachment was appropriate after an official’s term had ended. It is a concept that has not been tested, at least on the American president, until now. Context from outside the Constitution needs to be reflected upon in order to understand what the Framers were thinking about when they wrote the impeachment clause into the Constitution.
“A well-constituted court for the trial of impeachments is … difficult to be obtained in a government wholly elective…there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.”