The Constitution does not authorize a general impeachment power

January 28, 2021

The Supreme Court is the highest tribunal in the United States for all cases and controversies arising under the Constitution. But not all legal issues reach the court, and even if they do, it takes years for them to do so. That is why we, as U.S. senators ourselves, take an oath to uphold the Constitution.

It is not our job to just pass the buck to the court to iron out the details. Whether it is a question about the constitutionality of a mandate to buy health insurance or of the recess appointments clause, we as senators have a duty to decide what we believe the Constitution says.

Although it is a close question, and the relevant constitutional text is susceptible to multiple interpretations, the most natural reading leads me to conclude that the Senate should not conduct an impeachment trial where, as we are facing today, the person impeached is no longer in office.

Article 1, Section 3, Clause 6 provides that “when the President of the United States is tried, the Chief Justice shall preside.” And Article 2, Section 4 mirrors this formulation, stating that only the "president, Vice President, and all civil Officers of the United States” may be impeached.

These sections do not say that “a” president or “a former president” or “anyone who has served in that office” may be impeached. It says “the” president. There is a difference between “the” president and “a” president, and there can be no dispute that “the” president is not Donald Trump but Joe Biden. The former remained in office, and on that basis, was subject to impeachment until noon on Jan. 20, 2021. The latter was not subject to impeachment until that very same moment but now is.

This reading finds additional support in Article 1, Section 3, Clause 7, which provides that “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.” I read this clause — in particular, the use of the conjunctive “and” rather than the disjunctive “or” — to establish removal as a condition precedent to the remedy of disqualification. If a public official is subject to removal through the impeachment process, then he or she is subject to disqualification. If not, then the opposite is true.

The text thus reveals that the authors of the Constitution chose a design that was different than the English impeachment system, under which any private citizen could be impeached. The founders made a clear choice to reject that approach. That’s why they limited the list of who could be impeached to “the President, Vice President, and all civil officers of the United States.”

Significantly, the Senate has never tried and convicted any impeached official after that official has left office. In fact, when the House impeached Sen. William Blount, a Tennessee Republican, in 1798, a year after the Senate voted to expel him in 1797, the Senate eventually dismissed the case approving a resolution, concluding that “this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed.”

Proponents of a broad impeachment power often point to the impeachment trial of Secretary of War William Belknap in 1876 to support the contention that there is precedent for former officials to be tried for impeachment. Unlike the Blount trial, which the Senate dismissed for lack of jurisdiction, the 1876 Senate did narrowly vote to proceed with the trial. But Belknap was ultimately acquitted by that same Senate. Apparently, senators still rejected the claim the Constitution gave them the power to convict former officials.

If the Senate were to adopt a broad interpretation of the impeachment power, one allowing federal officials to be convicted on impeachment charges even after leaving office, the result would be contrary to the text, structure, and historical understanding of the Constitution.

Oped originally published by Washington Examiner