What is the US constitutional basis for the following actions?

  1. Impeaching and trying a former US president?
  2. Barring a former US president from elected a president in the future?
  • 5
    The "constitutional basis" is the Constitution. Feb 10 '21 at 6:51
  • 3
    @BlueDogRanch: Would you care to elaborate, preferably into an answer?
    – Hans
    Feb 10 '21 at 16:45
  • First thing you should do before asking a question is search this site: law.stackexchange.com/search?q=impeachment . And use Google. Feb 10 '21 at 17:33

I would argue the Constitutional basis of these actions would be the Constitution itself, namely 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.

and Article I, Section 3, Clause 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.

Note also, that as Hamilton explained in the Federalist Papers, the Impeachment process was a check brought over from England (it predated the formation of Britain by several centuries) as a check on Executive (read Monarchal) power of royal appointments, including Judges.

So, to answer your questions directly:

  1. Serving out one's term or resigning is not a shield to impeachment, otherwise one could simply play "whack-a-mole", appointing the same individual repeatedly (which is also why future barring of the individual from governmental office is an option). The purpose of impeachment is, per Hamilton, to react to "political crimes"; "mundane" crimes are to be handle by the normal judicial system. Nixon did famously resign rather than be impeached, but he was barred from running again anyway, having served two terms as President. Congress at that time chose not to continue the impeachment process after his resignation (note that disqualification is an option, but not required, punishment that can be levied by Congress in the event of impeachment).

  2. See Article I, Section 3, Clause 7, quoted above.

  • A minor point. Englsih practice never involved impeachment of a king, only of the King' s appointed officials. That did, of course, hamper the king's exercise of authority thought improper by Parliament. Feb 10 '21 at 15:24
  • 1
    @DavidSiegel: Charles I may or may not agree with you :). But edits made to clarify.
    – sharur
    Feb 10 '21 at 15:34
  • Charles I was not impeached. He was indited for and convicted of treason, a quite different procedure (and legally very dubious under the then-existing English law, but that did not stop the execution). Feb 10 '21 at 15:37
  • @DavidSiegel: I was mostly being facetious with Charles I comment; although he was "removed from office" on the charges of "charges of high treason and 'other high crimes' ". (Charles I made similar legal arguments at his trial, hence 'may or may not agree').
    – sharur
    Feb 10 '21 at 15:57
  • Yes. I have in fact read the records of his trial, some years ago, and i understood the humor. But Parliament did not use the impeachment procedure. it debated how to proceed, a problem since treason was defined as an attack on the king. But in form the king was indicted for a crime, and executed after conviction. After the restoration, the trial was of course held to be invalid. Impeachment under the English system was a special procedure, closely imitated in the US constitution Feb 10 '21 at 16:11

The issue is unclear. Article II, Section 4 of the constitution authorizes the removal from office of "The President, Vice President and all civil Officers of the United States" on "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article I, Section 3 specifies 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".

There is no specific provision allowing impeachment of, or an impeachment trial of a former holder of such an office.

The practice has been for the Senate to first vote on each article of Impeachment, and if and only if it voted to convict on any article, to then vote on whether to add disqualification from office to the judgement.

Several constitutional scholars have recently been quoted in the press to the4 effect that this means that a judgement of disqualification, when one is imposed, is always imposed on a former office holder, as the conviction has already occurred at that point. Others have argued that the judgement is a single transaction, and it is not final until all the Senate votes are concluded, and so the person remains an office holder when the vote on disqualification is held. No court has ever addressed this issue.

There are two precedents for holding a Senate trial (or at least a Senate Vote) on a bill of impeachment after the office holder had, in one case, resigned, and in the other case, been removed from office by other means. In neither case did the Senate vote to convict. In neither case did the Senate explicitly reject the impeachment because the person was no longer in office, although in each case some senators favored that view. Neither case followed quite the same course of events as the recent impeachment of then-President Trump. Neither case was of a President: one was of a Senator, the other of a cabinet Secretary. Neither case was at all recent.

The House and Senate are, as another answer points out, constitutionally empowered to set their own procedures, although not to expand their constitutional powers. When the House voted to impeach Trump, he was the sitting President and they were clearly within their powers. The Senate is now debating what to do with the articles of impeachment passed by the House, including the issue of the constitutionality of holding a trial on them. There is no precedent for a US court overriding the Senate on any question of Impeachment. The constitution gives the Senate "sole power" to try all impeachments. If the Senate does not vote to convict, that should end the matter. If it votes to convict (which now seems unlikely) and then votes to disqualify Trump from future office, Trump could perhaps challenge that disqualification in court. That would require overruling or distinguishing Nixon v US (which was about a Judge Nixon, not President Nixon). How that might play out no one can reliably predict at this time. It is not a likely chain of events.

  • "... that a judgement of disqualification is always imposed on a former office holder..." This is false and demonstrably so: Judge Alcee Hastings was convicted on articles of impeachment by the U.S. Senate in 1988 (69-26 vote) and was immediately removed from office but no vote to disqualify him ever happened. In 1992, Hastings won his Florida election for a Representative seat in the House and is to this day still a U.S. Representative.
    – hszmv
    Feb 10 '21 at 15:47
  • 2
    @hszmv that misunderstands the meaning of the argument, which i thought was clear in my answer, but I have edited to further clarify. When and if a judgement of disqualification is imposed, the argument runs, it is on a then-former office holder. Does that address your complaint? Feb 10 '21 at 15:53

The Constitution allows both houses of Congress to set its rules and procedures. They can "impeach" their house pets and farm animals if they want to spend their time on it.

The legal system is adversarial by design. Which means the only way any government activity can be evaluated for being legal or illegal (i.e., "constitutional" or "unconstitutional") is when there is a party which has been legally harmed and which can bring a petition to challenge this action in court.

Until and unless there is a former President (or any public official) who

  • loses an impeachment trial despite being tried after having left office,
  • decides to challenge such an impeachment outcome in court,
  • convinces the SCOTUS that there are grounds to reverse Nixon v US (whose outcome made all impeachments non-justiciable)

this question (of whether the Constitution supports such a trial) remains open. Anyone who claims otherwise expresses an opinion. Many of the people who do express such opinions are very well informed, but even well-informed and well-reasoned opinions do turn out to be wrong from time to time.

  • 1
    It’s worth nothing that only the House may impeach. The Senate’s trial is not called impeachment, nor may the Senate file articles of impeachment on its own.
    – A.fm.
    Feb 10 '21 at 14:04
  • 1
    @A.fm Yes, that was a possible way to read it. I just edited to add clarity. Thanks.
    – grovkin
    Feb 10 '21 at 14:28
  • 1
    -1 Art II Sec 4 permits impeachment and trial of "The President, Vice President and all civil Officers of the United States". This does not include house pets. It is true that there is no explicit mechanism for enforcing this limit, nor is it clear if it includes former holders of such offices. Feb 10 '21 at 14:46
  • 3
    @grovkin My objection is solely to the "house pets" line which seems to imply that there is no Constitutional limit on who can be impeached. As for my personal views, while I dislike Trump, I was opposed to the 2nd impeachment, not that I was consulted. Remove the "house pets" or make it clear such an act would be a violation of the constitution, although there is no explicit mechanism to enforce that limit, and i will upvote. Feb 10 '21 at 15:19
  • 1
    @grovkin Then say that in the answer, please. Feb 10 '21 at 15:55

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.