The Constitutionality of Trying a Former President Impeached While In Office

The U.S. Capitol Building in snow. (Architect of the Capitol) In his answer to the article of impeachment charging him with inciting insurrection, President Trump has claimed that the Senate may not constitutionally try, convict and disqualify him from future federal office because, although he was impeached while still the president, his term has now expired. Recently in these pages , Professor Philip Bobbitt lent his considerable prestige to the proposition that the Constitution bars such a trial. I find Professor Bobbitt’s arguments unpersuasive. Because the question is an important one, I explain my disagreements below.  So far as I can see, Professor Bobbitt’s position rests primarily on a colorable—but tenuous—argument from the text of the Constitution’s impeachment clauses. Moreover, he largely ignores or unfairly discounts powerful contrary arguments based on constitutional structure, founding-era understanding, subsequent applications of the impeachment clauses in American history and the prudential imperative of employing impeachment to protect constitutional government.  Arguments from Constitutional Text Consider first the text of the Constitution. Article I confers on Congress the power of impeachment and delimits the penalties available upon conviction. Article I, Section 2, Clause 5 grants “the House of Representatives … the sole Power of Impeachment,” while Clause 6 grants the Senate “the sole Power to try all Impeachments.” 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, Judgement and Punishment, according to Law.” Article II of the Constitution, which governs the executive branch, says, in Section 4, that “[t]he 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.”  The text does not directly address the question of whether a president, vice president or other civil officer can be impeached by the House while in office, but tried, convicted and sanctioned by the Senate after leaving office. (Nor does it address the related question of whether a person who was once a president, vice president or other civil officer can be impeached by the House after leaving office, and thereafter tried, convicted and sanctioned by the Senate. But since President Trump was impeached while in office, this article will focus on the scenario actually at hand.) Professor Bobbitt contends that because Article II says an impeached and convicted president “shall be removed from Office,” then a former president who, by definition, can no longer be removed therefore cannot be impeached, tried or convicted in the first place. This is a facially colorable reading of Article II, Section 4, at least if that section is read without consulting other impeachment language in the Constitution. But if one considers all of the Constitution’s impeachment provisions and their placement within the structure of the document, the constitutional argument against the propriety of a Senate trial of President Trump (or any former president in an analogous position) becomes decreasingly plausible. When Professor Bobbit lists the impeachment clauses in the Constitution, he places the single impeachment provision of Article II first, giving it implicit precedence over the multiple impeachment clauses of Article I. The order matters, I think. Putting the Article II clause first subtly suggests that this oddly-phrased passage, rather than the straightforward language of Article I, is the primary source for understanding the scope of Congress’s impeachment power.  Considered in what I think to be the more logical order, the Constitution begins in Article I with a general grant of power to Congress. It declares that impeachment is the business of Congress—to initiate, to try and to punish—but restricts the universe of possible penalties to two: removal and disqualification. Next, Article II enumerates the officers subject to impeachment, defines the standard for impeachable conduct as “treason, bribery, or other high Crimes and Misdemeanors,” and mandates removal as a minimum consequence of conviction.  Read as part of this more natural sequence, the removal language of Article II places no necessary restriction on the class of officials who may be impeached, convicted and penalized. Rather it requires that the Senate remove an official upon conviction, allowing that body no discretion in the matter, but leaving disqualification—the other penalty already enumerated in Article I—as an additional, but discretionary, consequence. So conceived, the impeachment clauses present no barrier to impeaching, trying, convicting and then disqualifying an officer who committed “high crimes and misdemeanors” while in office, but has since left office—whether by resignation or expiration of his term—at some point prior to the Senate’s determination of a proper penalty. For an officer who has vacated his post, removal may be moot, but disqualification remains available. How then is one to decide between these two readings? Professor Bobbitt offers two textual arguments in favor of his. The first is what I might call an appeal to illusory simplicity. He declares that, “There is no authority granted to Congress to impeach and convict persons who are not ‘civil officers of the United States.’ It’s as simple as that.” But, of course, no one has argued that Congress has the power to impeach anyone other than the president, vice president, or other civil officers. Professor Bobbitt implies that because impeachment is limited to this class of official, then the person impeached must be and remain such an official at every stage of the impeachment process. But the Constitution is silent on that point, and determining its meaning is hardly “simple.” Professor Bobbitt next claims that the “sole constitutional grounds” for a Senate trial at “which impeachment penalties can be imposed” are “commission of bribery, treason, or other high crimes and misdemeanors by a civil officer leading to his removal .” This formulation conflates the behavioral grounds for impeachment—treason, bribery, or other high crimes and misdemeanors—with one of the penalties for conviction of such behavior, in order to support a conclusion that imposition of the penalty is a prerequisite, a necessary “ground,” for conducting any trial at all.  But a penalty is neither an element of an offense nor a “ground” for asserting jurisdiction; it is a consequence of conviction after trial by the body possessing jurisdiction. Bobbitt argues that a person whose circumstances are such that he cannot be made to suffer a mandatory penalty therefore escapes jurisdiction altogether. But that claim runs contrary to the way the law normally thinks about civil or criminal wrongs and penalties. Consider a con man convicted under a fraud statute which provided, upon conviction, for mandatory forfeiture of all the proceeds of the crime plus a term of imprisonment imposed at the discretion of the judge. Would anyone think it sensible to conclude that the con man would be immune from prosecution and the possibility of prison if, before his trial, he blew all the loot in Vegas? Or imagine a law passed in a pastoral society that said: “A goatherd who steals a goat from the flock he is tending shall, upon conviction, be removed from the owner’s employment. Judgment in cases of goat theft shall extend no further than removal from current employment, and disqualification from ever again working in the livestock industry.” Suppose that, after apprehension, but before trial, the goat thief was fired from his job. Would it make sense to argue that the thief therefore could no longer be tried or, if convicted, banned from the herding trade for the protection of a society for whom honest stewardship of livestock is central to survival? That, in effect, is Professor Bobbitt’s textual argument about the application of the impeachment clauses to presidents entrusted with stewardship of democracy. Bobbitt’s reading of the text is, in my view, further undercut by former judge Michael McConnell’s recent exegesis . McConnell notes, first, that there can be no argument against the legitimacy of Trump’s impeachment by the House, since he was president when impeached, and second, that Article I, Section 2, grants the Senate “the sole Power to try all Impeachments.” As McConnell says, “The key word is ‘all.’ This clause contains no reservation or limitation. It does not say ‘the Senate has power to try impeachments against sitting officers.’ Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has po
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