The Constitutional Case Against Retroactive Impeachment
From my Newsweek op-ed Friday:
The second impeachment of Donald Trump raises an important constitutional question that no court has yet addressed—whether the Constitution’s impeachment provisions apply not just to sitting officials, but to former ones.
The Constitution provides that the impeachment process shall apply to “all civil Officers of the United States,” suggesting that those subject to it must actually hold office. But the possible trial of Trump has generated a swirl of arguments to the contrary. Last week, more than 150 law professors signed a letter arguing that even private citizens who had once held office may be impeached and then tried by the Senate. Perhaps influenced by such academic authority, this week the Senate rejected by a 55-45 margin a resolution concluding that such a trial would be unconstitutional. The arguments in favor of impeaching former officials are weak—and those to the contrary is at least compelling enough to not deprive a private citizen of his right to a jury trial.
Supporters of after-office impeachment have attempted to point to historical precedents—but there are no such precedents. In the 230-year history of the U.S. Constitution, there have been zero impeachments or trials of former presidents, and only one of any former “civil officer”—145 years ago.
Historical practice can be a guide to understanding the Constitution, but the Supreme Court has held that it takes a lot more than an isolated historical episode to show that something is constitutionally acceptable. Moreover, there is no reason to ignore the glaring la
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