Decoding Impeachment and Bad Legal Takes

My Facebook and twitter feeds have been inundated with bad legal takes related to impeachment. It’s exhausting if you are, like me, unable to see rampant stupidity and flat-out wrong information not corrected immediately. So, instead of continuing to argue individually, I figured I’d do it here to make my life a little easier. I’m gonna walk you readers through the background, structure, and history of the Constitution and the impeachment clauses generally.

BACKGROUND

The House voted to impeach President Trump for his actions on January 6th, 2021. They transmitted the Article of Impeachment to the Senate on January 25th, thus beginning the impeachment of former President Trump. Immediately, calls of the impeachment being “unconstitutional” abounded from nonlawyers. Heck, even a few well-respected lawyers like Prof. Turley and Prof. Dershowitz expressed the view that it’s unconstitutional. We’ll get to those arguments later.

This is flat out and totally wrong. First, let’s examine the constitution. It is broken up into different articles. For our purposes, we’re only concerned with Article I and Article II.

THE CONSTITUTION: ARTICLE I

Preamble to the Constitution

Article I concerns itself with the goings-on of Congress. It establishes their authority and the contours of their power. It gives the House the sole power of impeachment and the Senate the sole power to try impeachments. In relevant part, it states that “Judgment in Cases of Impeachment shall not extend further than removal from office and disqualification [from holding future federal office].” This doesn’t actually mandate any penalty for impeachment and does not specify that only current office-holders may be impeached. It literally only states the range of potential penalties that flow from impeachment. Remember this point: it does not mandate any penalty but instead limits the range of penalties.

This idea of limiting the range of penalties is not new in the Justice system, either. Most states have criminal sentencing schemes that provide a range – a minimum and maximum penalty — for a particular crime committed in a particular way. The Judge can’t generally exceed the maximums or go below the minimums. But they are generally free to choose whatever penalty they want within the range.

Thus, Article 1 — the Article of the constitution that defines the contours of Congressional impeachment authority does not actually specify a penalty. Nor does it specify that only current office-holders may be impeached. To be clear, it also doesn’t expressly state that former office-holders may be impeached, as well. This is called an ambiguity. With ambiguities, legal scholars look to the original meaning of the words, the history of the text, and the expectations and understandings of the drafters.

So, did the Founders contemplate ex officers being impeached? Yes. It was a common practice in England, was referenced in the federalist papers, and has happened in numerous instances in our country’s history. Remember, the House has the sole power of impeachment and Article 1 does nothing to limit who may be impeached. Moreover, it makes no sense to allow an individual to resign prior to conviction in order to evade the consequences of their bad conduct.

But wait, can anyone be impeached?

Surprisingly, this will not be the worst pun in this article…

No. To be impeached, you must hold an office. You can’t be impeached for doing a bad job if you don’t have a job. Plus, the text makes it clear that only current or former officers may be impeached and tried because Article 1 states that removal from office and disqualification are the only punishments allowed. In short, you can’t be impeached unless you held an office of the United States.

Okay, back from that detour. So the Founders understood that impeaching and disqualifying former officers was permissible and allowed. Has it ever happened before? Well, yes and no. The closest case was that of former Secretary of War Belknapp. Belknapp did all sorts of bribery schemes and was impeached. Prior to trial, he resigned. What happened?

Belknapp argued the Senate had no jurisdiction to try him because he was no longer a current officer. The Senate disagreed and, before commencing trial, affirmed its jurisdiction by vote. Belknapp was tried and narrowly acquitted.

But those senators who acquitted did so because they didn’t have jurisdiction…

Wrong and misleading, imaginary contrarian. While the Senators who voted to acquit may have done so because they didn’t believe they had jurisdiction, that doesn’t actually mean jurisdiction didn’t exist. It did — the Senate affirmed that before commencing the trial. It’s more like jury nullification rather than anything else. Juries are free, generally, to disregard the law and find a factually guilty defendant innocent. It doesn’t change the facts and it doesn’t change the law. It’s one jury deciding that, in their view, the law shouldn’t be applied in this instance.

No, not this either.

So, in summation, yes, the Senate has authority to try and even to convict former officers even if some Senators don’t believe they have jurisdiction. It’s no different from a jury finding a defendant accused of possessing marijuana “not guilty” even if there is video of that defendant smoking pot and saying “I love having marijuana in my front right pocket all the time”. That particular jury may not believe that the conduct should be punished but it doesn’t change the fact possession of marijuana is, generally, a crime.

Having examined the contours of Article I’s impeachment clauses and their application throughout history, let us move forward to Article II

ARTICLE II

Section 4 of Article II states that the “President, Vice President, and all civil Officers of the United States shall be removed from office on Impeachment for, and Conviction of . . . high Crimes and Misdemeanors”. Some laymen and bad-faith legal scholars construe this to mean that only current, sitting officers may be impeached. This is wrong.

First, Article II concerns itself with the Executive power of the United States. It contours and defines the authority of the President and other civil officers (think cabinet secretaries and the like). Stop and think for a second: Why would limitations on the exercise of impeachment power (defined and articulated in Article I) be modified and narrowed in the Article that deals with Executive power?

I’ll help you: it wouldn’t and it doesn’t. Article II, Section 4 (the part that says that civil officers shall be removed…) doesn’t actually limit the scope or authority of Congress. It only mandates that, upon conviction, a sitting office-holder shall be removed. Nothing in this text expressly or impliedly limits the scope of impeachment power because this Article doesn’t actually deal with the impeachment power. It simply says that if a civil officer is convicted they shall be removed. It doesn’t even mention disqualification. It sets a mandatory minimum for a certain class of individuals but it does nothing to limit conviction or impeachment to former officers

OKAY BUT THE CHIEF JUSTICE ISN’T PRESIDING SO ITS UNCONSTITUTIONAL

Chief Justice John Roberts (Right)

Hard disagree, imaginary contrarian. While I definitely believe the Chief Justice should preside over the trial of any former President, the text of the Constitution makes it fairly clear that such a requirement is only necessary when the sitting President is on trial. Otherwise, it’s up to the Senate rules — and the Supreme Court likely won’t question that. Why?

Let’s talk Nixon, no, not that Nixon. Judge Nixon, an Article III* judge, was convicted and incarcerated for perjury. Yet, despite being incarcerated, he refused to resign from the judiciary. Thus, we had a federal judge in federal prison earning a federal salary for doing absolutely nothing. The only way to remove an Article III judge who refuses to resign is through impeachment. So, the House impeached and the Senate delegated a committee to hear evidence and make recommendations. The committee recommended convicted and the Senate quickly voted and convicted Judge Nixon, removing him from Office.

Judge Nixon sued, stating that he was not afforded a “trial” as contemplated in the Constitution. The Supreme Court refused to adjudicate the case because it constitutes a “political question”. The political question doctrine is a doctrine that keeps the Supreme Court from overly interfering in matters wholly within the purview of another branch. Essentially, they said “the Senate has sole power of trying impeachments and we’re not gonna second guess their determination of how trying impeachments should go.” Of course, textually, its clear that the Chief Justice must preside at the trial of a sitting President yet no such requirement exists for trying someone who is not the President at the time of the trial. Again, to be clear, I believe the Chief Justice should preside but there is absolutely no requirement that he must do so in this instance.

BUT I’M STILL NOT CONVINCED

Now this isn’t even a damn pun…

Okay, I’ll give it one more shot. If impeachment and conviction applied only to current sitting officers, an impeached President could resign before conviction and avoid being removed or disqualified from future offices. A President could resign to avoid impeachment, be appointed Vice President by the current President (who is the former Vice President), and then the current President could resign and the impeached President will become President again. Is that how you think the Founders intended the system to work?

A Cabinet Secretary can be impeached, resign, and be re-appointed in order to avoid conviction and removal. Is that how the Founders intended the system to work?

Limiting impeachment only to current office-holders renders the disqualification clause toothless and creates an unintended and inequitable loophole by which bad actors can escape the consequences of their actions. That is not justice and that is not what our Founders contemplated when drafting the Constitution or the impeachment clauses.

BUT WHAT ABOUT DERSHOWITZ?

Great question. Prof. Dershowitz argued in the Wall Street Journal that you can’t impeach a former president. It does a terrible job. The crux of his argument is that Article II, Section 4 states that the President shall be removed upon conviction. He then adds in the Article I language discussed above “judgment in cases of impeachment shall not extend further than to removal and disqualification”. This is contradictory and misleading for a number of reasons.

First, as discussed above, Article II, Section 4 only prescribes the minimum required punishment for a sitting official who is convicted after impeachment. Removal. That’s it. Article II, Section 4 does not mandate even disqualification. Indeed, the issue of disqualification would be, per Senate rules, a separate vote after an individual is convicted.

Secondly, Article I, as discussed above, sets the maximum punishment for individuals who are impeached and convicted. They may only be removed and disqualified. They cannot be jailed or incarcerated by Congress. By omitting mandatory disqualification in Article II (the part of the Constitution regarding executive authority), the Founders clearly intended to convey the possibility of an ex-office holder being impeached and convicted. Prof. Dershowitz’s argument that the “and” in Article I mandates that both removal AND disqualification are required for a constitutional Senate trial is defeated by the plain text of the Constitution. If both elements were required, then Article II would have included mandatory disqualification along with mandatory removal.

Third, the rest of Prof. Dershowitz’s article notes that Congress did not impeach and try Nixon after he resigned. This, of course, ignores the glaringly obvious point: Nixon was not eligible to run for President again. There was no need to seek disqualification and no office to remove him from.

What does Prof. Turley say? Essentially the same thing as Prof. Dershowitz. Prof. Turley essentially argues that because disqualification is an optional step, the predominant purpose is removal of unfit officers. While this argument does seem to have merit, it is ultimately unpersuasive. The Constitution enumerates only two penalties available for impeached and convicted officials and there is no reason to artificially limit one of the two simply because the official isn’t subject to the other. Again, the Founders did not intend to allow an official to escape the consequences of their misconduct by resigning.

In the end, both pieces argue essentially the same thing: That impeaching former officials would be disastrous, have far reaching consequences, and be a political WMD. While those are valid points, they do not render the action unconstitutional. Bad politics doesn’t make something violative of the Constitution no matter how many times people scream that it does.

WRAPPING IT UP

In short, the Founders were well-versed in post-office impeachments and trials and expressly contemplated the possibility in their contemporaneous writings of the time. They did not include any language that limits the impeachment and trials in the Constitution and there is no evidence that they intended to do so. Contrast this with things like Bills of Attainder or ex-post-facto laws, which are expressly prohibited. Barring former officials from being impeached and tried renders the disqualification consequence entirely toothless (indeed, Belknapp resigned in an attempt to evade the consequences of impeachment). And, several times in our history, former officials have been impeached and tried. Thus, there really is no good-faith debate about this issue: Former officials can, and if appropriate, should be impeached and tried. It comports with the text, the history, and the historical practice of impeachments going back centuries.

Lastly, a few disclaimers because I’m a lawyer (but not your lawyer) and I love disclaimers: This article is not intended to communicate or advocate any position on whether conviction is proper, necessary, or factually/legally supported. I’m only discussing whether former officers CAN be tried, not whether they should be convicted. Secondly, all opinions are my own and do not necessarily reflect the views of any of my employers.

*That’s another article.

…and yes I’ll show myself out for that amazing pun.

Derek Debus is a trial lawyer in Arizona and a graduate of the Sandra Day O'Connor College of Law where he earned recognition as a Willard Pedrick Honors Scholar and received the designation of Trial Advocacy Fellow. Prior to attending law school, Derek served in the United States Marine Corps as an infantryman and combat instructor and worked to train law enforcement as a professional firearms instructor. Derek also serves on the Board of Directors for the nonprofit organization Academe Grove -- a 501(c)(3) nonprofit focused on providing training and resources to education institutions and first responders. Follow him on twitter @derek_debus.