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Can President Trump be impeached after he leaves office?

January 12, 2021 by Scott Bomboy

 

The expected impeachment proceedings on Wednesday against President Donald J. Trump will surface one of the Constitution’s most arcane questions: Can a federal official be removed from office if he’s already left the building?

To date, that question has not been answered fully, but it was presented to the Founders in early 1799, about 11 years after the Constitutional Convention in Philadelphia. The House of Representatives impeached Senator William Blount and sent impeachment articles to the Senate after Blount was already expelled from office. However, Blount’s full trial was never held in the Senate. Also, the facts in the Blount case were very different than those likely presented in President Trump’s second impeachment process.

Link: The Second Trump Impeachment: What Happens Next?

William Blount was himself a Founder. He represented North Carolina at the 1787 convention but said little at the proceedings when he was in Philadelphia. Blount was one of 39 delegates who signed the Constitution, and he also promoted its ratification in North Carolina.

By 1797, Blount acquired land west of the Mississippi on credit and was in significant debt. After France defeated Spain in the War of the Pyrenees, in order to prevent Spain from ceding France its territories and potentially depressing western land prices further, Blount became involved in a plan for Native Americans and frontiersmen to attack parts of present-day Missouri and Louisiana, which would ultimately then be transferred to Great Britain.

Video: Jeffrey Rosen and Ali Velshi on Whether a Former President Can Be Impeached

However, a letter incriminating Blount fell into the hands of Secretary of State Timothy Pickering. President John Adams, on receiving the letter, sent it to Congress. Blount became the first federal government official subject to the impeachment process, one of the Constitution’s critical checks-and-balances against the abuse of power.

The Constitution’s Article II, Section 4 reads that “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.” The Constitution assigns the consideration of charges to the House of Representatives, with the Senate conducting a trial if the House approves impeachment articles against a civil officer.

On July 8, 1787, an outraged Senate voted to expel Blount from its membership, in accordance with its powers under Article I, Section 5, the Expulsion Clause, which provides that “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” But the House had impeached Blount a day earlier and the Senate was obliged to try Blount when the final impeachment articles were presented to it.

By December 17, 1798, Blount had returned to Tennessee and had no plans to attend Senate impeachment proceedings that day. Still, the Senate trial process went forward.

The Senate faced two questions: First, was a senator considered a “civil officer” under the impeachment clause, and second, if he was, could a civil officer out of office face trial and conviction in the Senate?

Jared Ingersoll, a signer of the Constitution, was one of the attorneys representing Blount at the trial. Ingersoll argued a senator was not a “civil officer” subject to impeachment, unlike the President and other officials. Representative James A. Bayard of Delaware, the House’s lead manager, replied that the considerations for the Northwest Ordinance of 1787 and the Constitution’s plain language made it clear that senators were civil officers subject to impeachment.

Rep. Bayard and Alexander James Dallas, Blount’s other attorney, debated that secondary question. Bayard believed a civil officer could not escape impeachment through resignation. “The party, by resignation or the commission of some offense which merited and occasioned his expulsion, might secure his impunity. This is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong.”

Dallas conceded that argument, but then said Blount had been expelled by the Senate, which was a different matter. “I certainly shall never contend that an officer may first commit an offense and afterwards avoid punishment by resigning his office; but the defendant has been expelled. Can he be removed at one trial and disqualified at another for the same offense?”

In the end, the Senate voted 14 to 11 on January 11, 1799, to dismiss a motion that “William Blount was a civil officer of the United States within the meaning of the Constitution.” It then passed another resolution by a vote of 14–11: “The court is of opinion that the matter alleged in the plea of the defendant is sufficient in law to show that this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed.” Many scholars see this as evidence a senator cannot be impeached, and expulsion by a two-thirds vote is instead the proper remedy, but that was not conclusively stated by the Senate.

In President Trump’s probable second impeachment, current Senate majority leader Mitch McConnell has issued guidance that a trial, if needed, could still take place after the inauguration when Trump was no longer president.

It is an open question as to whether a former president can face a Senate impeachment trial. In a recent post on the legal blog Just Security, UNC Law professor Michael J. Gerhardt points out one argument against the trial of a former president — that Donald J. Trump would become a private citizen after leaving office and the Constitution only applies to civil officers. Gerhardt also acknowledges the counterpoint: “The problem with this argument, however, is that presidents and the other officials who are subject to impeachment are not like the rest of us.  Once they leave office and return to their private lives, they are still ex-presidents and former officials who may have committed impeachable offenses in office,” Gerhardt writes, and “litigation or prosecutions might not be able to get at the misconduct, since the scope of impeachable offenses extends to misconduct that is not an actual crime.”

In December 2019, the Washington Post interviewed six scholars about that very question. Three believed it was a possible but unsettled question that a former president could face a Senate trial; two others said the Senate lacked such powers; and one scholar believed the Senate could try a former president.

Scholar Frank O. Bowman also pointed out another precedent: the 1876 impeachment trial of William Belknap, who served as Secretary of War for President Ulysses S. Grant. Belknap faced allegations of receiving kickbacks, and he resigned moments before the House approved articles of impeachment. The House charged Belknap with “basely prostituting his high office to his lust for private gain.” At Belknap’s trial, the Senate passed a motion in a 37 to 29 vote that “William W. Belknap, the respondent, is amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.” The Senate later acquitted Belknap on all charges, lacking a two-thirds majority to convict.

A third precedent is the case of federal judge West Hughes Humphries. Humphries left the federal bench in Tennessee to join the Confederacy as a judge without resigning his federal commission. In January 1862, House member John Bingham led the investigating committee, which charged Humphries with high crimes and misdemeanors. The Senate found Humphries guilty on seven charges in June 1862, and in a separate vote, a unanimous Senate disqualified Humphries from holding federal office again.

Scott Bomboy is the editor in chief of the National Constitution Center.

 
 

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