5

In summary, the answer to "Can a US President, after impeachment and removal, be re-elected or re-appointed?" was "Yes, unless the Senate votes by simple majority to add the penalty of disqualification to a removal from office."

Suppose a President can see that such a vote is coming and will pass, shortly before an election. Can that President resign just before the vote in order to effectively avoid the disqualification penalty?

  • Are you considering a resignation before the Senate votes on whether to convict, or after that vote but before a second vote on whether to disqualify? – phoog Nov 9 at 1:03
  • @phoog The latter, principally, assuming a practical gap between the two. – WBT Nov 11 at 4:41
  • Correction, thanks to @phoog's answer (and +1 to that): it would have be be before the first Senate vote for the question to make sense. – WBT Nov 11 at 16:05
3

SHORT ANSWER

Suppose a President can see that such a vote is coming and will pass, shortly before an election. Can that President resign just before the vote in order to effectively avoid the disqualification penalty?

Probably yes.

But, there is no historical precedent for this happening. Nixon resigned before the House voted to impeach him, not midway into the impeachment proceedings. Neither Andrew Jackson nor Bill Clinton resigned prior to not being convicted on the basis of a U.S. House impeachment.

Several federal judges and one cabinet official, however, have resigned midway through impeachment proceedings prior to being convicted, and in those cases, the case was dismissed and no judgment was entered by the U.S. Senate, so they were not disqualified from holding future federal public offices.

LONG ANSWER

Relevant Constitutional Language

The pertinent provisions of the U.S. Constitution include the following:

Article I, Section 2, Clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3, Clauses 6 and 7:

6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

7: 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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 4:

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.

Article II, Section 2, Clause 3:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Analysis

The key language is in Article I, Section 3, Clause 7 of the U.S. Constitution which states in the pertinent part 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[.]

This means that a President who is impeached by the House and convicted by the U.S. Senate may be prohibited from holding any federal office from President to dogcatcher in the future.

But, this can only be done in a "judgment" of the U.S. Senate in connection with an impeachment based upon a conviction in the U.S. Senate following a House impeachment, which has never happened.

The history of the impeachment language and the limitation to removals from office, suggest that only a person who is current serving in office may be impeached. Otherwise, the proceeding would be invalid as moot, and would be dismissed (as it has been in the case of many judges who have resigned after investigations are initiated or after a House impeaches but prior to a conviction of impeachment).

A U.S. Senate ruling that someone is disqualified from holding future office can only be entered in a judgment of conviction for impeachment, so cannot apply to a past President. If this were done it would probably be an invalid "Bill of Attainder" or "Ex Post Facto" law. See U.S. Constitution, Article I, Section 9, Clause 3 ("No Bill of Attainder or ex post facto Law shall be passed").

And, the U.S. Senate can't pass a law unilaterally, or enter a judgment convicting someone on an impeachment unless the House initiates the proceeding.

There is no precedent concerning whether if someone who was convicted by the U.S. Senate and removed from office based upon an impeachment initiated by the U.S. House, in which the judgment did not disqualify the person impeachment from holding future federal public offices, the U.S. Senate could amend its judgment later on to also disqualify the person so removed from office from holding further public office.

I suspect that if the question were presented that the federal courts would hold that the amendment of the impeachment judgment was not valid because the word "judgment" implies an immediate ruling upon a case and not a perpetual right to hold the person subject to the judgment in limbo regarding the consequences of his impeachment conviction.

  • "Dogcatcher" is definitely not a federal office ;-). More substantively, if the vote for disqualification has to happen after the vote to remove, why would it matter how much later? On a related point, would the removal vote itself make the person no longer President by the time of any vote on disqualification, in every case? – WBT Oct 3 at 14:29
  • @WBT Generally speaking, the votes would be substantially contemporaneous and the final judgment of the U.S. Senate would not be issued until all aspects of it have been voted upon (the disqualification might, for example, but offered as an amendment to the original removal resolution before it is adopted on a final third reading vote). And, there are "dog catchers" in the federal government, e.g. in the park service and otherwise on government owned land. The disqualification is not just from elected office, but also from appointive office. – ohwilleke Oct 3 at 22:33
  • 1
    That last line in your comment is a more useful clarification than I expected from the first line of mine! – WBT Oct 4 at 14:42
  • Just a bit of clarification, the first person to be impeached by the House was a U.S. Senator, who the senate expelled the same day the impeachment charges were voted upon. Because the Senate had effectively remove the impeached member, it created the precedence that the Impeachment process stops with the removal from office, be it conviction by the Senate, Resignation prior to trial, or other legitament means, such as voting out of office (not happened). Senate.gov mainains that the Senate is "The High Court of Impeachment" as affirmed by SCOTUS (Nixon v. United States) . – hszmv Nov 13 at 14:03
  • Additionally, the first impeachment case brought precedence that only officers in the Judiciary and Executive Branches of Government are impeachable, as both houses of the legislative branch can expell their respective members through a vote of 2/3rds majority of that house (Constitution, Article I). – hszmv Nov 13 at 14:06
1

Yes

That is, in effect, what President Nixon did. He resigned when the House was preparing articles of impeachment which seemed likely to pass. His resignation stopped the impeachment process. Of course, no one can say what the Senate would have done had he not resigned, but many people expected a conviction and removal from office.

Had Nixon been in his first term as President, his resignation would have left him legally able to run for a second term later (unlikely as that might have been, politically). Even as it was, he was legally able to run for Congress later (although he never did). Had he been removed from office and had the Senate added disqualification to removal, he would have been barred from so running, or from being appointed to a Federal Judgeship. Not that these would have been likely events in any case, but that is the legal effect.

  • In what sense did "his resignation stop the impeachment process"? Obviously it did in fact stop, but could Congress have chosen to push on with the process and finally voted to disqualify him? If not, what law / Constitutional provision / Congressional rule would prevent it? It could be one of those things that we don't know because it's never been tried. – Nate Eldredge Oct 2 at 1:45
  • @Nate Eldredge My understanding is that the impeachment process is aimed entirely at removal from office, and that if the target is no longer in office (resigned, died, term over) it cannot continue, although any evidence can be transmitted to law enforcement for possible criminal action. I don't have a source handy, but I have seen one that says that. – David Siegel Oct 2 at 14:23
1

You asked:

Suppose a President can see that such a vote is coming and will pass, shortly before an election. Can that President resign just before the vote in order to effectively avoid the disqualification penalty?

Then I asked

Are you considering a resignation before the Senate votes on whether to convict, or after that vote but before a second vote on whether to disqualify?

You responded:

The latter, principally, assuming a practical gap between the two.

In that case, the answer is clearly no, the impeached president cannot resign at that point, because the president has already been removed from office by the Senate's vote for conviction. One cannot resign from an office one does not hold.

  • :facepalm: Of course. My answer to your clarification question in comments was too rushed; it has to go the other way for the question to really make sense. Thank you for this answer! – WBT Nov 11 at 16:06
  • @WBT you're welcome :-). Then it seems that the resignation would render the Senate trial moot and it's unlikely that a vote would take place, but I suppose it would be possible, especially if the impeached were actively seeking federal office at the time and had obviously resigned for that reason. – phoog Nov 11 at 19:27
0

Yes. But there is nothing to stop the House re-impeaching the newly elected President and the Senate convicting.

  • 1
    Unless, of course, the same election that re-elects the ex-President also elects a Congress who no longer supports impeachment. – Nate Eldredge Oct 2 at 1:49
  • 1
    @NateEldredge Can Congress impeach a President-elect? – Martin Bonner supports Monica Oct 2 at 5:11
  • @NateEldredge Or the same election picks all the same leaders, but they see that election result as a mandate from the people which makes the same Congresspeople unwilling to support re-impeachment. – WBT Oct 2 at 15:08
  • I think that if a new congress tried to impeach a president based upon exactly the same conduct which a previous senate trial rejected prior to a new election, that the usual rule that impeachment is a non-justiciable question might fall by the wayside and result in the U.S. Supreme Court holding the second impeachment to be invalid (based upon structural and due process arguments), or could give rise to a constitutional crisis. As a practical matter, I doubt that it would ever happen in that context. – ohwilleke Oct 2 at 21:38
  • @MartinBonner "Can Congress impeach a President-elect?" In my view, the answer to this question would be clearly no, except to the extent that the President-elect is also currently serving as President at the time. – ohwilleke Oct 2 at 21:39
0

The case of William Belknap indicates that impeachment and trial need not end with the resignation. He was impeached by the House after his resignation, and was tried and acquitted by the Senate (largely because some of the Senators didn't feel they had jurisdiction any longer). I'm assuming the reason the trial was held was so Belknap might be disqualified from holding future office.

  • 1
    Hello! Welcome to Law.SE. Plese read our tour page. – isakbob Nov 9 at 2:37

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.