Today, on Presidents’ Day, we celebrate the office of the presidency and its impact on our nation’s history. From George Washington to Joe Biden, we recognize the forty-five men who have served our country as chief executive. However, I choose today not to write about these men but about a mechanism which is as old as the office of the presidency itself: that of impeachment. This past week, the impeachment of Donald Trump, which has centered on his involvement in the January 6th riots, has dominated headlines. On February 9th, Donald Trump became the first president, and person, in history to face two impeachment trials in the United States Senate, and two days ago, by a vote of 57-43, he became the first person to be twice acquitted of articles of impeachment. Although these proceedings ultimately ended in acquittal, I wish to still make the argument that they should have never occurred in the first place, as I believe the Senate did not have the proper jurisdiction to hold a trial for a man who no longer holds formal political office. In my analysis, I wish to respond to two publications concerning the issue, a January 15th report by the Congressional Research Service and a January 21st letter published in Politico. I strongly believe that although the process is over, the constitutional question at hand is not moot. Rather, it poses some serious questions regarding the Senate’s refusal to respect the text of the United States Constitution.
Whenever ascertaining the meaning of the Constitution, one must begin, and end, with an analysis of its text. In the case of the Senate’s impeachment conviction power, the text is clear: punishments from conviction can only apply to current officeholders. In my analysis today, I will focus on the seventh clause of Article I, Section 3, which I will henceforth abbreviate as the “Judgment Clause.” Along with the Judgment Clause, I have also included the text of Article II, Section 4. The two texts read as follows:
“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 I, Section 3
“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 4
When read together, the Judgment Clause and Article II, Section 4 paint a clear picture of Congress’ impeachment power. It is structured as a part of the Constitution’s system of checks and balances, allowing the legislative branch, split between the House of Representatives and Senate, to politically punish any public official who it has accused and convicted of serious malfeasance. In the case of this past week’s impeachment trial, a central controversy has arisen out of the Judgment Clause, with proponents of a post-presidential Senate trial using it to justify their preferred interpretation of Congress’ impeachment power. This interpretation, which negates a conjunctive link between the punishments of removal and disqualification, seeks to completely separate the two and allow for Senate conviction to ignore the requisite punishment of removal.
According to the proponents’ argument, because the punishment of “disqualification to hold and enjoy any Office of honor” is entirely severable and distinct from the punishment of “removal of office,” the former can supersede the latter and apply to the impeached person’s post-presidency. This argument, to use the words of Alexander Hamilton, is “made up altogether of false reasoning upon misconceived fact.” Nowhere in the Constitution does it say that “an ex-president” may face the punishments put forth by this clause. In Article II Section 4, as shown above, the Constitution only mentions the “President, Vice President, and all civil Officers of the United States” as being liable to face impeachment proceedings. Because he no longer holds the office of the presidency, thus reducing him to the status of a private citizen, Donald Trump does not qualify under these constitutional requirements.
To claim that a conjunction can now suddenly assume the meaning of a necessary prefix, and thus override the plainly-obvious textual meaning of the Constitution, is grammatically and logically preposterous. If the Framers had intended for Senate conviction to apply to after a president had left office, they would have needed to indicate it as such. At any one moment in time, there is only one President of the United States. After Joe Biden was sworn in, Donald Trump ceased to hold any formal political power. Thus, if the Framers intended for ex-presidents to be equally-liable to face impeachment and conviction, they would have had to make a written distinction. The word “president,” as it relates to the state of holding the power of Chief Executive of the United States, cannot simultaneously refer to two individuals. Using the basic semantic and syntactic principles that conjunctions cannot equate to prefixes and nouns cannot simultaneously pluralize and singularize the subject to which they refer, I reject, on a textual basis, the argument that a president can be convicted on articles of impeachment after he has already left office.
Proponents have nonetheless made such an argument. To justify their reasoning, they have turned to an extra-textual “understanding” which they believed the Framers held about the scope of Congressional impeachment power. Pulling from the impeachment provisions in several pre-1787 state constitutions and the historical practice of British impeachment, proponents have argued that this “understanding” should and must supersede the text of the Constitution.
I first wish to address the argument about pre-1787 state constitutions. It is indeed true that several of these constitutions allowed for maintenance of impeachment jurisdiction after a person had already left office, and some even required impeachment to only be applicable after the person no longer held office. However, as I will illustrate below, the Framers understood the impeachment provisions in these state constitutions and specifically structured the U.S. Constitution’s impeachment provision to be different.
Over two hundred thirty years ago, James Madison anticipated this argument in Federalist No. 39. In this number, he acknowledges the differences between state constitutions and the United States Constitution, writing:
“In several of the States, however, no explicit provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office.”
Indeed, in the Delaware Constitution of 1776, it states:
“The president, when he is out of office, and within eighteen months after, and all others offending against the State, either by maladministration, corruption, or other means, by which the safety of the Commonwealth may be endangered, within eighteen months after the offence committed, shall be impeachable by the house of assembly before the legislative council…”
Likewise, in the Virginia Constitution of 1776, it states:
“The Governor, when he is out of office, and others, offending against the State, either by mar-administration, corruption, or other means, by which the safety of the State may be endangered, shall be impeachable by the House of Delegates.”
In the Pennsylvania Constitution of 1776, impeachment jurisdiction follows the proponents’ interpretation of the Judgment Clause, with impeachment proceedings being allowed to occur after a person has already exited office:
“Every officer of state, whether judicial or executive, shall be liable to be impeached by the general assembly, either when in office, or after his resignation or removal for mar-administration…”
In all three of these constitutions, the official either must be out of office or can be out of office to be liable to facing impeachment proceedings. However, in Federalist No. 39, Madison is clear in distinguishing the impeachment provision in the U.S. Constitution from those found in state constitutions. Although he refers to the process as a whole in using the word “impeachable,” it is clear that he understands the Senate trial as being a part of a process that requires constant maintenance of jurisdiction. In specifically contrasting the U.S. Constitution with the aforementioned state constitutions, and in specifically defining Congress’ impeachment jurisdiction as occurring during the “continuance” of the president’s time in office, he debunks the argument made by proponents of post-presidential conviction.
The argument linking the Framers’ thinking and the constitutions of Delaware, Virginia, and Pennsylvania poses a legitimate question: if the Framers intended for impeachment to follow the same protocols as the three aforementioned states as well as Britain, then why did they (A) not include similar language in the final version of the Constitution and (B) structure the Judgment Clause to specifically distinguish between American and British impeachment? The Framers could have easily done so, as signatories of the U.S. Constitution had also been present at the conventions that drafted the three aforementioned state constitutions.
James Madison, who was the principal architect of the U.S. Constitution and author of twenty-nine Federalist Papers, played a major role in the Fifth Virginia Convention that drafted the Virginia constitution of 1776. George Read, who was one of two Delaware signatories of the U.S. Constitution, served as the president of the convention which drafted the Delaware constitution in September of 1776. Finally, Benjamin Franklin, who was a Pennsylvania signatory of the Constitution, served as the president of Pennsylvania’s constitutional convention in 1776 and contributed to the drafting of that state’s constitution. If the Framers had an “understanding” of what impeachment was meant to be, then why did they not specifically state such an understanding in the text of the Constitution? The men who oversaw the creation of their states’ constitutions could have easily swayed their fellow delegates at the 1787 convention to adopt similar language in the U.S. Constitution. However, as the text of the Constitution clearly shows, no such thing occurred.
Second, I wish to address proponents’ argument regarding British impeachment, as I believe it can be used to debunk their own interpretation of the Judgment Clause. Indeed, the Framers understood the British practice of impeachment and its applicability to ex-officials and private citizens. It is precisely this understanding that led them to specifically distinguish American impeachment from British impeachment, which they accomplished through the structure of the Judgment Clause.
In creating the structure of American impeachment proceedings, the Framers used British impeachment as a model, with Alexander Hamilton acknowledging British influence in Federalist No. 65:
“The model from which the idea of this institution has been borrowed pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter as the former seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?”
However, Hamilton’s acknowledgment cannot be responsibly construed as a sweeping equation of American impeachment with British impeachment, as his acknowledgment extends insofar as to the separation of the process between two houses of a bicameral legislature. However, the splitting of the process between two chambers of Congress is where the structural similarities end, as the Framers went on to structure the Judgment Clause in a way that specifically detached American impeachment from the British practice.
During the drafting process, the Framers structured the Judgment Clause to consist of two halves, one denoting the punishments a person may face while in office and one denoting the punishments a person may face while out of office. Thus, in structuring the clause to specifically differ from the British practice’s ability of targeting a private citizen or ex-official, the Framers specifically created impeachment as a mechanism that only applies to current officeholders, not to those who no longer hold formal political power.
If one is to properly analyze Hamilton’s comparison between the American and British practices in Federalist No. 65, one must turn to his proposed texts of the Judgment Clause from the Constitutional Convention, all of which support a conjunctive link between the two punishments prescribed in the Constitution. One of these proposed texts reads as follows:
“The Governor, Senators, and all officers of the United States to be liable to impeachment for mal and corrupt conduct, and upon conviction to be removed from office, and disqualified for holding any place of trust or profit”
Although this proposal doesn’t adopt the “no further than” language of the final draft of the Constitution, its structure indicates an important conjunctive link between the punishments of removal and disqualification. In the drafting process, I believe the Framers adopted the final text as a means of distinguishing the American practice from the British practice and specifically limiting it to current officeholders, not as a means of dissolving the conjunctive link between the two punishments. Indeed, numerous commentaries, both from the time of ratification and from subsequent decades, confirm this reading of the Judgment Clause.
Later in the Federalist Papers, Hamilton both confirms the conjunctive link between removal and disqualification and distinguishes between the consequences a person may face when in office and when out of office. In Federalist No. 69, he writes:
“The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law”
In No. 77, he writes:
“[T]he election of the President once in four years by persons immediately chosen by the people for that purpose, and his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to the forfeiture of life and estate by subsequent prosecution in the common course of law”
And finally, in No. 79, he writes:
“[Civil officers] are liable to be impeached for malconduct by the House of Representatives and tried by the Senate; and, if convicted, may be dismissed from office and disqualified for holding any other.”
In each of these three instances, Hamilton clearly establishes the conjunctive link between the two punishments, and in the first two, he specifically mentions the punishments that officials may face when out of office. When discussing the implications of conviction, Hamilton doesn’t indicate a discretionary link between voting to remove an official and voting to politically incapacitate an official. When read naturally, Hamilton’s words and the text of the Constitution indicate that a successful vote for conviction involves both the removal of an official from office and his disqualification from holding any other.
In the first two quotes, Hamilton echoes the halved structure of the Constitution’s punishment clause. Like the clause, he makes a clear distinction between the punishments a person may face while in office and those he may face while not in office, the former being of an entirely political nature and the latter being of an entirely legal nature. It is in this distinction, this halving, that the answer to the question at hand lies, as it resolves any controversies that may arise surrounding the impeachment and conviction of an ex-official.
In another piece of ratification-era literature, Tench Coxe, a Pennsylvanian who later served as Alexander Hamilton’s Assistant Secretary of Treasury, describes the Senate’s role in the impeachment proceedings. Appearing in the Independent Gazetteer a week and a half after the signing of the Constitution, Coxe’s second An American Citizen essay says the following about impeachment:
“[The Senate] can only, by conviction on impeachment, remove and incapacitate a dangerous officer, but the punishment of him as a criminal remains within the province of the courts of law to be conducted under all the ordinary forms and precautions, which exceedingly diminishes the importance of their judicial powers.”
Like Hamilton, Coxe also contrasts the American practice from the British practice:
“[The Senate] possess[es] a much smaller share of the judicial power than the upper house in Britain, for they are not, as there, the highest court in civil affairs.”
Also like Hamilton, Coxe both affirms the conjunctive link between the two punishments and distinguishes the American practice from the British one. However, in Coxe’s writings, he is even more specific in contrasting the two. In clearly noting the lack of power the Senate has in comparison to the House of Lords, Coxe illustrates that the Framers intentionally structured its impeachment power to be drastically less powerful than that of its British counterpart. In doing so, he dismantles the proponents’ argument linking the British practice’s applicability to the Framers’ supposed “understanding” of the Constitution’s impeachment provision. Yes, the Framers did have an understanding of how British impeachment works, and this understanding is what led them to adopt a practice that was not nearly as extensive. As Coxe describes, the Senate’s impeachment power is comparably small, as it only extends to current officeholders and not private citizens. Thus, its power may not be construed to extend further than to applying to those currently holding office.
Almost fifty years after the ratification of the Constitution, in 1833, Justice Joseph Story published his extensive Commentaries on the Constitution. In these commentaries, which are mentioned in the CRS report, Justice Story writes at length on the topic of the Senate’s role in impeachment proceedings. Like Coxe and Hamilton, Story also establishes the conjunctive link between the two punishments and notes the contrast between American and British impeachment. He does so in the two examples below:
“If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office.”
“In this respect, it differs materially from the law and practice of Great Britain…There seems a peculiar propriety, in a republican government at least, in confining the impeaching power to persons holding office. In such a government all the citizens are equal, and ought to have the same security of a trial by jury for all crimes and offences laid to their charge, when not holding any official character. To subject them to impeachment would not only be extremely oppressive and expensive, but would endanger their lives and liberties, by exposing them against their wills to persecution for their conduct in exercising their political rights and privileges.”
Story’s analysis proves even more profound and detailed than Hamilton’s and Coxe’s. Like them, Justice Story’s analysis casts doubt on the disjunctive interpretation of the Judgment Clause. As he argues, the most important mechanism of Senate conviction (that of removing an officer from his position) is lost when the accused official has exited office. If the most important object of impeachment jurisdiction is lost when a person leaves office, then the Senate should not and cannot continue the process.
Additionally, Justice Story notes the uniqueness of the American impeachment mechanism. Unlike Britain, the American mechanism is restricted only to those holding political office, a novel concept which the Framers carefully crafted to specifically distinguish between the two. Furthermore, Justice Story goes on to argue that extending the mechanism to those not holding office (private citizens) would be extraordinarily detrimental to individual liberty, a concept which was not specifically elaborated upon by Hamilton or Coxe but which was ingrained in the structure of the Judgment Clause.
Although not written at the time of the ratification of the Constitution, I believe Justice Story’s analysis is as equally valid and important as Hamilton’s and Coxe’s. Given the benefit of time, a luxury which was not afforded to those in the political climate of ratification, Justice Story is able to elaborate extensively on the aforementioned constitutional questions and provide even clearer answers.
The last argument made by proponents of a post-presidential Senate trial is that of the “precedent” that they believe should shape people’s view of the Senate’s impeachment powers. However, I choose not to answer their examples, as I believe no precedent should be used as an excuse to override the textual meaning of the Constitution. If the aforementioned “precedent” involves the Senate escaping its constitutional limitations, then it should not be respected in the first place. It is a foolish, dangerous, and irresponsible exercise to let the political branches of government decide how much authority they are granted by the Constitution. Granting them total control over their perception of constitutional responsibility allows bad political actors to mold and shape the Constitution to their liking, resulting in a document which no longer bears even a passing resemblance to what was signed by the Framers on September 17, 1787 and ratified on June 21, 1788.
To conclude, I wish to make one last use of Alexander Hamilton’s analysis of the impeachment provision. In Federalist No. 65, he writes:
“The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.”
As Hamilton elaborates, impeachment was structured to be a purely political mechanism, a mechanism which the Framers understood could be abused by congressional majorities. Just as Hamilton writes, this past week’s impeachment proceedings bore no legal importance. They simply concluded a piece of political theatre organized by congressional majorities and acted out by the leaders of both parties. They made no sizable impact on our nation’s current state of affairs, and they contributed nothing to the idea of political accountability. Also, because the Senate trial (despite its unconstitutionality) ended in Donald Trump’s acquittal, it contributed nothing to any sense of accountability which some in Congress believe he should face for his actions on January 6th.
If the current Congress truly believes that Donald Trump committed legal wrongdoing on January 6th, it should recommend that he face the legal ramifications put forth by the second half of the Judgment Clause. However, if the current Congress wishes to pursue a legislative agenda which it claims will help the American people, it should move on from its political bloodlust and commit itself to productivity. Although acquitted of the House’s articles of impeachment, Donald Trump still carries the shame of being removed from office by 81,000,000 voters on November 3rd of last year. Ultimately, this served as the greatest means of political accountability he could have faced. Despite this, he still received the votes of 74,000,000 million Americans who believed in his vision for the country. So, I urge the current Congress to be content in the fact that a majority of the American people chose to deny Donald Trump a second term in office and revoke his formal political power. However, I also urge Congress to be cognizant of the substantial portion of American public that wished to see him continue his work in office. By pursuing an unconstitutional course of action against a man who has already faced the highest level of political accountability, the current Congress has signaled its unwillingness to heal partisan wounds. Hopefully in the days, weeks, and months to come, Congress will come to understand the necessity of true unity in our current political climate and will commit itself to accomplishing bipartisan goals.