The Constitutional Case Against Retroactive Impeachment | Opinion

The second impeachment of Donald Trump raises an important constitutional question that no court has yet addressed—whether the Constitution's impeachment provisions apply not just to sitting officials, but to former ones.

The Constitution provides that the impeachment process shall apply to "all civil Officers of the United States," suggesting that those subject to it must actually hold office. But the possible trial of Trump has generated a swirl of arguments to the contrary. Last week, more than 150 law professors signed a letter arguing that even private citizens who had once held office may be impeached and then tried by the Senate. Perhaps influenced by such academic authority, this week the Senate rejected by a 55-45 margin a resolution concluding that such a trial would be unconstitutional. The arguments in favor of impeaching former officials are weak—and those to the contrary is at least compelling enough to not deprive a private citizen of his right to a jury trial.

Supporters of after-office impeachment have attempted to point to historical precedents—but there are no such precedents. In the 230-year history of the U.S. Constitution, there have been zero impeachments or trials of former presidents, and only one of any former "civil officer"—145 years ago.

Historical practice can be a guide to understanding the Constitution, but the Supreme Court has held that it takes a lot more than an isolated historical episode to show that something is constitutionally acceptable. Moreover, there is no reason to ignore the glaring lack of impeachments of the countless former office holders who may have deserved it. Indeed, since government officials spend more time out of office than in it, if subsequent impeachment were constitutional, one would expect to see it more often than impeachment of sitting officials.

The primary argument in favor of using the impeachment process against former office holders is policy-based. Because the sanction of being barred from office can only be applied after a Senate conviction, an official could "undermine" the impeachment mechanism "simply by resigning one minute before the Senate's final conviction vote." Yet a last-minute resignation is far from an avoidance of accountability. Resignation removes the official, and does so more surely than a Senate trial. As can be seen in the case of Richard Nixon, it does little or nothing to remove the public stain of impeachment proceedings, which the Framers recognized was perhaps their greatest effect. Moreover, in the case of presidents, leaving office immediately opens them up to criminal prosecution.

While barring someone from office is one of the punishments available in impeachment, nothing suggests it is so essential, or the strategic resignation scenario so likely, that being able to pursue people when out of office is essential to the impeachment power. It would be like prosecuting dead people for crimes, and punishing their estates with fines, because otherwise people could "escape accountability" by committing suicide.

Conjuring up the exceedingly speculative case of an office holder who resigns from office "one minute" before a conviction only highlights how far-fetched the broader argument is. Even if concern about strategic resignation were valid, it would not mean that the Senate should be able to try people who did not resign to avoid responsibility. Trump left office not through any gamesmanship, but at the natural end of his term. It was the Senate, not Trump, that strategically choose to delay the start of the process until he left office.

Donald Trump makes speech in Washington D.C.
President Donald Trump speaks to supporters at Joint Base Andrews before boarding Air Force One for his last time as President on January 20, 2021 in Joint Base Andrews, Maryland. Trump, who has been impeached twice, may struggle to pay back hundreds of millions of dollars of debt over the next four years, experts say. Pete Marovich/Getty

Supporters of trying Trump ignore the far greater scope of possible abuses and absurdities that their position would lead to. In their view, the impeachment power it is actually unlimited in time; the Constitution contains no statute of limitations. Congress could impeach someone who held office 50 years ago, for acts long forgotten. New congressional majorities could terrorize former office holders long after their time in public life. Or Congress could undermine checks and balances by waiting for officials to leave office—when they may be less able to defend themselves—to commence the process. Surely this is not what the Framers intended.

Supporters of retroactive impeachment point to the use of the practice in some states and in England before the adoption of the Constitution. But those jurisdictions were not applying the U.S. Constitution, and the lack of such cases under the Constitution only emphasizes the disjuncture. Indeed, at a much better historical vantage point, Supreme Court justice Joseph Story, one of the Constitution's foremost interpreters, squarely addressed the issue and concluded the Constitution does not allow it.

While no former president has been impeached, the professors argue that "there is no reason why the same rule would not apply to presidents." The assertion is belied by the Constitution's provisions about impeachment, which clearly treat the president differently from other elected officials. Unlike any other impeachment, the president's trial is presided over by the chief justice of the Supreme Court. This difference strongly suggests that the Constitution's Framers had in mind a sitting president; the vice president would normally preside over a trial in the Senate, but is obviously an interested party—because the Constitution assumes the president on trial is in office.

Moreover, the Constitution provides that presidential pardons are ineffective in "cases of impeachment." This was designed to prevent self-dealing by a president, given that those impeached would be government officials, and thus often the president's own subordinates. This only makes sense on the assumption that it is the sitting president and sitting executive officeholders who are impeachable. If impeachment can reach back into time, there would be no necessary or even likely correspondence between the interests of a president and the officers.

Indeed, other parts of the Impeachment Clause don't fit the retroactive version. The Constitution excludes military officials from impeachment, even though they otherwise fit the category of impeachable officers, because they are subject to court martial. But they are not subject to court martial for life—so again, this fits with the view that impeachment applies to sitting officials.

We should not pretend that there are authoritative constitutional answers here—just weaker and stronger interpretations. But a Senate trial is, as the Constitution emphasizes, an exceptional procedure: it is the only situation in which someone can be tried for a crime without the benefit of a jury. The Sixth Amendment's requirement of a jury trial is broad and clear. The basic rules of criminal law require construing legal uncertainties in favor of a defendant.

Donald Trump is hated by many for undermining constitutional norms. But the desire to remove his influence from politics should not be turned into an occasion for doing the same.

Eugene Kontorovich is a professor at George Mason University's Antonin Scalia Law School, where he heads the Center for the Middle East and International Law.

The views expressed in this article are the writer's own.