Two days ago, all but five of the fifty sitting Republican United States Senators voted to dismiss the House’s second impeachment of Donald Trump, relying on the nakedly dishonest argument that the Constitution does not allow former federal officials to be impeached and tried by Congress. That Republican ploy was a travesty, and it is good that it failed.
Many scholars and commentators have already weighed in on the Republicans’ argument, and the overwhelming weight of opinion is that there is no constitutional bar to impeaching or trying a former president. One particularly good op-ed discussing this question was penned by Professor Laurence Tribe, who forcefully responded to a contrarian (or, more accurately, a crankish) view that had been advanced by a retired federal judge.
As Tribe and others have shown, all of the ways in which we understand and interpret the Constitution lead to the conclusion that Trump can be convicted after a Senate impeachment trial. Notably, for example, there is ample evidence that the framers’ original view of the impeachment power certainly extended to post-term impeachments and trials.
Here, I want to offer an even more basic argument to explain why the Constitution unquestionably allows impeachments in the current context. The constitutional text itself makes it abundantly clear that there is no barrier to trying Trump next month—or later this year, or any time at all.
Allow me to be blunt: One need not even look at the historical context, the canons of construction, or any parade of horribles that will soon be on the march if we do not hold a trial, as persuasive and legally sufficient as those arguments might be. The words of the Constitution itself make clear that what Democrats are doing is fully legitimate.
Textualism Is Not Always Dispositive, But It Is Absolutely Clear Here
Article II, Section 4 of the Constitution provides: “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.” According to Republicans, this means that Congress cannot impeach or convict a former president, because he is not the President. By virtue of the fact that he is no longer in office and cannot be removed, they say, he cannot be impeached or convicted in the first place.
I will turn to a related constitutional provision that puts this matter in full context in a moment, but imagine first that the words above were the only relevant constitutional directive on the question at hand. What does the Constitution say, simply as a matter of text? It says that, “on Impeachment … and Conviction,” a president shall be removed from office. What it does not say, however—what it does not even come close to saying—is that the House and Senate may not pursue the impeachment and conviction of someone who is no longer in office. It says only that if they do so against a sitting president, a convicted miscreant shall be removed from office. If that person is already out of office, then removal is obviously unnecessary.
Again, remember that Article II, Section 4 only applies to “The President, Vice President and all civil Officers.” That only means that when any of those people is impeached and convicted, he shall be removed from office. It says nothing about what to do about anyone else who has been impeached, such as a former president.
There is no way to read those words as a prohibition on trying and convicting ex-presidents (or other impeachable officials). Imagine an anti-burglary law requiring that ex-felons be sentenced to longer terms than first-time offenders. Such a law could not be held somehow to mean that first-time offenders cannot be convicted of burglary. It merely means that a particular consequence shall apply to one category of offenders and not to others.
As far as the Constitution tells us, Congress could impeach anyone it wants, anytime it wants. Again, the only thing that Article II, Section 4 tells us is that if a person is convicted and is currently holding office, then he shall be removed. Republicans want to rewrite that provision to say that the only time that Congress can hold impeachment proceedings is when a president is still in office, but that is not what the provision says.
To summarize the point as simply as possible, the Constitution says that a sitting president, if he is impeached and convicted, shall be removed from office. Republicans read those words and draw this conclusion: “Only sitting presidents may be impeached and convicted.” The correct conclusion, however, is actually obvious to the point of being trivial: “If a former president is impeached and convicted, he obviously need not be removed from office.”
Indeed, we can think of impeaching and trying a former pr
ormer President Is Plainly Constitutional
