An originalist case for trying, convicting and disqualifying a president after he or she leaves office.
Donald Trump has now been impeached by the House of Representatives for the second time but will not stand trial before the Senate until after he has left office. Senate backers of the president seem to be coalescing around the argument that at that point their body will no longer have jurisdiction over the by-then ex-president.
The majority of impeachment scholars maintain that the impending trial is perfectly proper. An insistent minority urge the opposite. The arguments so far focus primarily on the text of the constitution and on three prior impeachments: Senator William Blount who, in 1797-98, was impeached while in office and tried afterward; Secretary of War William Belknap, who in 1876 was both impeached and tried after leaving office; and Judge West Humphreys, who in 1862 was impeached, tried, convicted, and disqualified a year after he abandoned his office to join the Confederacy. Although these impeachments provide persuasive precedent for post-term Senate impeachment jurisdiction, obsessing over them can mislead us because none involved a president. Even though Article II, §4, renders all “civil officers” (a phrase we now read to include judges and executive branch appointees) impeachable, the president was the nearly exclusive focus of all the impeachment debates at the Constitutional Convention.
The delegates supported the ouster of a president for personal corruption, egregious incompetence, and betrayal of the nation to foreign powers. But a singular concern of the Framers, not merely when debating impeachment but throughout the process of designing the constitutional system, was the danger of a demagogue rising to the highest office and overthrowing republican government. Continue reading.