When the U.S. House of Representatives voted to impeach former President Donald Trump (R) on a charge of “incitement of insurrection,” it set us up for a new constitutional conundrum that I did not address in my previous analysis. At the time, when Trump was still president, I looked at what impeachment is, how it should be used, and the charge itself. I concluded, for reasons described in depth there:
Article 1’s accusation is not supported by the evidence. Trump’s speech contained no actual incitement to violence or insurrection, and the storming of the Capitol cannot be proven to be causally related. The Senate should acquit.
Trump, Impeachment, and the 25th
Because the House voted to impeach, the U.S. Senate would normally take it up and hold an impeachment trial under the established process. We’ve used it three times before—against President Andrew Johnson (D), President Bill Clinton (D), and Trump after his first impeachment. What makes this time unique is that Trump’s term is over; he is no longer president.
Now we have to answer a new constitutional question: Can we put a former president on trial?
Constitutional Basis
I covered the constitutional basis of impeachment in my previous analysis, but it bears repeating here as we look into this new issue:
The House of Representatives . . . shall have the sole Power of Impeachment.
Article I, Section 2, Clause 5 (excerpt)
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
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.
Article I, Section 3, Clauses 6-7
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.
Article II, Section 4
Background
It seems obvious that the founders did not contemplate this particular scenario—or, at least, that they did not address it directly. It is clear that the only people subject to impeachment are “the President, Vice President[,] and all civil Officers of the United States,” and Trump is not any of those things now, but he was at the time he was impeached by the House.
Before we address this head-on, let’s consider some of the things we do know from the constitution itself or from established precedent.
First, if a president committed a crime before he was president, he is subject to the normal criminal justice system . . . but he cannot be tried while he is in office because he has executive immunity. He also cannot be impeached for that crime because it did not happen while he was in office. He could still be subject to trial and punishment after he leaves office.
Second, if a president commits a crime while in office, he is subject to impeachment. If convicted, he is removed, and the Senate could also disqualify him from holding office in the future. After he’s out of office, he can still be subject to trial and punishment in the criminal justice system (“the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”).
Third, if a president commits a crime after leaving office, he’s just a regular guy who is subject to the normal criminal justice system and impeachment doesn’t play into it at all.
For the sake of argument, let’s put aside the question of whether Trump actually committed a crime and assume that he did. The House impeached him. Had the Senate convened and held a trial prior to his leaving office, it clearly could have removed him (at any time before noon on January 20) and precluded him from holding future office. Regardless of how the Senate voted, Trump would still be subject to indictment and prosecution in the courts at any time at or after noon on January 20.
What makes things so thorny now is that the impeachment process is straddling between two states. Trump was impeached for something he did in office, but no trial was held before he left. Some argue that the process may continue because the alleged offense occurred during the Trump presidency, while others argue that the impeachment process must now terminate because it is no longer directed at a person in the permitted categories (“the President, Vice President[,] and all civil Officers of the United States”).
Extrapolation
Because the text of the constitution is not clear, we have to extrapolate from things we already know and precedents already established.
One basic principle we can come to is this: the way we handle an alleged crime is based on conditions at the time it occurred. This is why a president is not subject to impeachment for something he did before he took office. The only reason we delay prosecution for such a crime until after the president leaves office is because of the special nature of the presidency and the checks and balances between the branches.
The change of status from “not president” to “president” does not change the proper venue for handling the alleged crime; it stays where it was at the time it occurred. It follows that a change of status from “president” back to “not president” would not change the proper venue either. This would mean that an alleged crime that occured during a presidency could be dealt with through impeachment even after the president is no longer in office.
But the text of Article II, Section 4, speaks of impeachment, conviction, and removal together in the same clause where it sets the scope to “the President, Vice President[,] and all civil Officers of the United States.” That implies that the entire process can apply only to people who are currently in one of those positions. That would mean that the whole thing must stop now that the subject—Trump—is no longer president.
The clause is too ambiguous to make a clear, textual determination either way, so we must attempt to discern the intent of the founders.
It is very unlikely that the founders intended for the House to be able to impeach former officials, which would open a whole weird can of worms. Would that mean we could go back and impeach Nixon? Harding? I think it’s safe to say that the House cannot impeach a former president.
But once the process is in motion—once the House has voted to impeach a current president—it seems logical that the process should be permitted to continue to its conclusion. There is no reason to believe that the founders intended for a president to be beyond congressional action in the final days of his term.
This still leaves some frustrating ambiguity. What if a president does something clearly impeachable five minutes before leaving office? Is the House unable to impeach unless it does so in those five minutes? It appears so . . . for now.
Conclusion
It is unfortunate that the constitution is so unclear about this. We should seriously consider making reforms to the impeachment process with a constitutional amendment. The amendment should set a clear scope for what Congress can and cannot do with regard to impeachment of a former president.
My suggestion would be to make it clear that a president can be impeached by the House at any time during the presidency, and, to deal with “last minute” stuff, at any time within sixty days of the alleged offense occurring. This would mean, for example, that the alleged offense by Trump on January 6 could be impeached up ’til early March, even though he left office on January 20. I would also require that the House transmit any adopted impeachment articles to the Senate within seven days, and that the Senate hold a trial within sixty days of receiving them. Finally, I would widen the criteria to allow impeachment for any reason (not just for crimes) which would eliminate unnecessary wrangling over what is and isn’t impeachable. Let Congress use it as a “vote of no confidence” if it wants; it still has to get to a two-thirds vote which won’t happen over trivial things.
Anyway . . . for now, here are my conclusions. Between the text, the intent, and the precedent, my interpretation is this:
- A former president cannot be impeached by the House of Representatives.
- If a president is impeached by the House, but leaves office before trial, the Senate must proceed with the trial.
- The trial should be presided over by the Chief Justice of the Supreme Court, but this is only required when the current president is tried.
- The trial would still require a two-thirds vote for conviction, just like any other impeachment trial.
- Conviction, in and of itself, does nothing. Normally it would result in removal from office, but a former president is already out of office, so nothing happens.
- If convicted, the Senate may vote to disqualify the former president from holding future office, like it can in any other impeachment trial.
- In any case, a former president may still be subject to trial and punishment in the court system.
In conclusion, the U.S. Senate must proceed with the impeachment trial of former President Trump. However, as discussed in-depth in my analysis of the charge, it should vote to acquit.
Editor’s Note, January 25, 2021: The constitution only specifies that, “When the President of the United States is tried, the Chief Justice shall preside.” He is not required to preside over the trial of a former president. The original version of this post was in error on this point and has been corrected.