Can a former president be tried by the Senate? The Constitution’s text may not address this question clearly, but the Convention debates of 1787 offer some significant evidence that the answer is yes.
Over the last few days, Judge Michael Luttig and impeachment expert Ross Garber have been making a formalistic textual argument that the Senate can put only sitting presidents on trial, and not former presidents. Others have made important textual, historical, and practical counterarguments (Vladeck, Kalt & Bowman, Whittington, Tribe, Gerhardt). [Update: I add a textual argument based on Art I, Sec 3, cl. 6 & 7 here]. Unfortunately, the post-ratification history is indecisive (especially to originalists). For example, the impeachments of Sen. Blount in 1797 and Sec. of War Belknap) are unclear as precedents (as Kalt acknowledges to Jack Goldsmith here), given that neither led to convictions. Moreover, even though the Blount impeachment occurred in the first decade of new Constitution, it has problems as evidence of original public meaning.
A crucial overlooked counterargument is the original public meaning revealed in the 1787 Convention itself. Together, delegates George Mason, Edmund Randolph, and Gouverneur Morris indicate a broad purpose of impeachment, especially in the context of election fraud (and electoral college controversies), which is most relevant at the end of presidential terms. Such misconduct occurs too late to be punished in the same term. One apt quotation if we are concerned with a narrow or broad reading on timing: Randolph, who identified the danger of presidential misconduct and insurrections, said, “Guilt wherever found ought to be punished.”
They do not answer the narrow question directly, but they are more persuasive that the original public meaning and the purposes of the impeachment clauses apply to former officials than an excessively close reading of one clause.
Narrow textualism, while appropriate for statutes that are supposed to specify details, has widely been understood to be less appropriate for Constitutions, which are not meant to have “the prolixity of a legal code.” Luttig and Garber make a fundamental mistake of treating the Constitution like a statute, and being hyperformalistic about the impeachment process. Luttig’s main argument (and I think his only argument) is a close reading of one clause, Article II, Section 2:
“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.”
Luttig asserts that “[T]he Constitution itself answers this question clearly” with its “plain text.” The only way the Constitution could answer this question clearly is if it said “Congress may not impeach and convict a former official.” One might argue that the actual wording implies a negative, but it does not say so explicitly or clearly.
Luttig adds another clause: “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.” However, one can read this as a disjunctive: Judgment includes removal and/or disqualification, but no more. The first interpretation is initially a plausible textual argument (demanding further inquiry), but the second is a tellingly weak textual overreach.
Luttig claims “[t]he purpose, text and structure of the Constitution’s Impeachment Clauses confirm this intuitive and common-sense understanding,” but Luttig offers only a hypernarrow textual reading for a conclusion that actually contradicts purposes, structure, intution, and common sense.
Before we turn back to 1787, let’s think about common sense. Several commentators have pointed out that Luttig’s interpretation would allow any impeached official to dodge trial and disqualification by resigning even a minute before trial, especially once they had a sense the vote was headed to conviction. As Brian Kalt has pointed out, this rule would have a perverse effect that the most guilty officials would be most likely to avoid disqualification, and it would be odd to put a process so entirely in the hands of a defendant.
Moreover, what does common sense tell us about when a sitting president is most dangerous? Obviously at the end of his term when running for re-election or facing a possible election defeat and trying to hold onto power. That’s precisely what has happened since Nov. 3.
It turns out that the Framers in the Constitutional Convention articulated these concerns.
The key debate was on July 20th (I provide full quotations below, but only partial quotations here). According to Madison’s notes, George Mason was especially concerned with election fraud and the electoral college: presidents corrupting electors to get elected and again to stay in power “by repeating his guilt.” It is important to acknowledge Mason used the term “whilst in office” to punish someone who attained office by fraud, but Mason was clearly worried about a president abusing power at the end of a term to stay in power. To deter such late-term re-election conduct, it would be odd to say that only a president who succeeds should be impeached and disqualified, but a president who tried and failed should be immune from disqualification.
A few speeches later, Randolph emphasized broad application: “Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections.” It is prescient that Randolph worried about presidents and insurrections, and it seems plausible that Randolph worried about not only insurrection against abusive presidents, but also a president losing an election and fighting against a transition. In the latter case, such conduct would happen only late in the term, and should be punished whether or not that president succeeded. Should a technicality of being out of office matter? As Randolph said, “Guilt wherever found ought to be punished.”
Perhaps the most remarkable speech was Gouverneur Morris, who was one of the key supporters of a strong presidency and a skeptic of impeachment. But after Mason, Randolph, Madison, Franklin, among others spoke for a broad power of impeachment, he conceded that his “opinion had been changed by the arguments used in the discussion.” After noting the infamous “Secret Treaty of Dover” in which Charles II made a corrupt deal with King Louis XIV that led to war, Morris concluded, “The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office.” The latter case was incapacity, and morally unobjectionable, and thus Morris would limit the punishment to removal. But by contrast, Morris implied that treachery and “corrupting his electors” should be punishable by more than just degradation (removal) from office. Morris was more clearly addressing corruption during a re-election effort — and the significance of disqualification beyond just removal. Morris seems to think that disqualification is crucial for presidents who cheated in the electoral college. The same logic applies with equal force to former presidents who might cheat and corrupt their way back to power.
Keep in mind that at this stage, there was no term limit for presidents, no 22d Amendment limiting presidents to two terms. The Framers had to worry about a president who might abuse power to hold on to office not just once, but multiple times. Without term limits, it was even more important to deter presidents from using their vast powers to stay in office for long periods of time.
Taken together, a fair reading of the Convention debate indicates that the Framers supported a broad impeachment process for presidential misconduct at the end of their terms, especially with respect to re-election abuses, corrupting or contesting electors, and insurrections. They also implicitly viewed disqualification as an important punishment after they were out of office.
This is a classic case where a close reading of a constitutional text is only the beginning of interpretation, not the end. Given the lack of clarity of the text itself, the Framers clarify the purposes of the clause, and it lines up with common sense: The original meaning of the impeachment clauses is that they applied to ex-presidents, as well as presidents.
Col. MASON. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Natl. Legislature. One objection agst. Electors was the danger of their being corrupted by the Candidates; & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?
Mr. RANDOLPH. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen [from Col Hamilton] of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds [FN11] of impeachment existed.
Mr. Govr. MORRIS‘S opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any [FN12] time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in forign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.