More on Impeachment Trials of Former Officials
Thursday, Senator Mike Lee, himself an accomplished lawyer, published an op-ed concluding,
Although it is a close question, and the relevant constitutional text is susceptible to multiple interpretations, the most natural reading leads me to conclude that the Senate should not conduct an impeachment trial where, as we are facing today, the person impeached is no longer in office.
Article 1, Section 3, Clause 6 provides that “when the President of the United States is tried, the Chief Justice shall preside.” And Article 2, Section 4 mirrors this formulation, stating that only the “president, Vice President, and all civil Officers of the United States” may be impeached.
These sections do not say that “a” president or “a former president” or “anyone who has served in that office” may be impeached. It says “the” president. There is a difference between “the” president and “a” president, and there can be no dispute that “the” president is not Donald Trump but Joe Biden. The former remained in office, and on that basis, was subject to impeachment until noon on Jan. 20, 2021. The latter was not subject to impeachment until that very same moment but now is.
Our own Prof. Eugene Kontorovich (George Mason) also published an op-ed Friday reaching the same conclusion (I hope he’ll post an excerpt from it himself later today), and Prof. Philip Bobbitt (Columbia) had a similar post Wednesday at Lawfare, which begins:
Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol. Nevertheless, the Senate is making a mistake in holding a trial of the article of impeachment, which is scheduled to begin the week of Feb. 8, after the president leaves office. Doing so subverts the law in an effort to punish someone who subverted the law.
On the other hand, back in 2001, Prof. Brian Kalt (Michigan State) presciently wrote a whole law review article on the issue, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, which makes me especially pleased to pass along his response to Sen. Lee’s op-ed (I would have happily posted the entirety of Sen. Lee’s op-ed as well,
Article from Latest – Reason.com