The Constitution’s Option for Impeachment After a President Leaves Office

Donald Trump did not end his presidency without raising yet another question about how he may be constitutionally accountable for his misconduct in office.  With just under two weeks left before Joseph Biden’s inauguration as the forty-sixth president of the United States, it seems unlikely there is enough time for the Congress to fully consider impeaching Trump for his newest misdeeds, including urging Georgia officials to commit voter fraud and encouraging a mob of his followers to storm the Capitol.  There is no doubt this misconduct qualifies as impeachable, as even the Wall Street Journal’s editorial board accepts.  The question is whether a president may be impeached by the House or tried and convicted by the Senate after he has left office. It has never happened before in American history, but then no president until Trump spent his final days in office doing the kind of damage he has done — attacking the legitimacy of America’s democratic institutions and expressing his “love” for his followers who charged into Congress with guns and destroyed federal property in their quest to find his enemies and hold them accountable for not overturning the election results.

The Constitution provides that the President “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” but it says nothing about the timing of when the impeachment and trial may take place. That omission makes sense, since presidents – and any other impeachable officials – could commit impeachable offenses at any time while they are in office, including in their last months or days in their positions.  It certainly makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions.  What’s more, 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.  And what if that misconduct is not discovered until after a president leaves office?  There may be no practical means for holding him accountable for such misconduct, especially if he is regarded as having been immune from any criminal prosecution or inquiry while he was in office.  Being president is not a safe harbor from political and legal accountability.  This is why John Quincy Adams proclaimed on the floor of the House that, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.” (Michael J. Gerhardt, The Federal Impeachment Process:  A Constitutional and Historical Analyses 80 (2d edition 2000) (citation omitted))  Adams’s suggestion was that any impeachable official remained subject to that process well after they left office, not just presidents but those who abused power while in office.

The principal argument against allowing post-presidential impeachment is that the Constitution does not make private citizens subject to impeachment. The founders rejected the British model that allowed Parliament to impeach anyone, except for the King, and so they limited impeachment to certain public officials, including presidents.  Subjecting a president to impeachment after he has returned to his private life would, seemingly according to this logic, violate this basic constitutional principle.  (Indeed, the Constitution itself applies only to governmental not private action.)

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.  A core principle of the Constitution is that no one, not even the president, is above the law, and an abuse of power, by definition, is a violation of the Constitution, the supreme law of the land. What’s more, the special penalties upon conviction in impeachment are designed to protect the republic from the very type of people who have abused public office in such a grave manner that they should never have the opportunity to be entrusted with public power again. It would make no sense for former officials, or ones who step down just in time, to escape that remedial mechanism. It should accordingly go without saying that if an impeachment begins when an individual is in office, the process may surely continue after they resign or otherwise depart.

Understandably, members of Congress and the American people might lose the appetite for subjecting a president to impeachment once he has left office for good.  But that is a political choice not a constitutional directive. A president who leaves office and retains the potential to return someday should still be subject as well to the unique processes set forth in the Constitution to sanction his abuse of his office.  To haul a former president back before the tribunal of Congress when it has uncovered misconduct makes eminent sense when the only permissible sanctions might be those that the Constitution provides.  That misconduct invariably calls for a special remedy, and the Constitution provides that in disabling the president who has committed such misconduct of ever being able again to serve as president or any other federal office and continuing to benefit financially from his time as president.  Presidents are not above the law, not when they are in office, and not when they leave office.  That kind of accountability comes with the job, a job Donald Trump seems to want so badly that he’s breaking the Constitution to try to keep it. 

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About the Author(s)

Michael J. Gerhardt

Michael J. Gerhardt is the Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law. Gerhardt is the author of six books, including leading treatises on impeachment, appointments, presidential power, Supreme Court precedent, and separation of powers. Gerhardt’s extensive public service has included his testifying more than a dozen times before Congress, including as the only joint witness in the Clinton impeachment proceedings in the House; speaking behind closed doors to the entire House of Representatives about the history of impeachment in 1998; and serving as special counsel to the Senate Judiciary Committee for seven of the nine sitting Supreme Court justices. Follow him on Twitter (@MichaelGerhard8).