In 1788, Alexander Hamilton wrote, “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent [to try impeachments]? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?” Federalist No. 65 (1788) (emphasis in original).
In 1998 as a law professor, I wrote to then-Representative Rick Hill offering my opinion about the four articles of impeachment of President Clinton. I argued that the President could be impeached under only two of the articles. I don’t know if Rep. Hill ever read my letter. He did, however, vote to adopt only those two articles.
Let us now consider the impeachment trial of former President Trump. The original meaning of the Constitution makes clear that Trump, even though he has left office, may be tried by the Senate and, if convicted, disqualified from future office. Here are the relevant clauses, with my emphases.
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of . . . high Crimes and Misdemeanors.” Art. II, § 4.
“The Senate shall have the sole Power to try all Impeachments. * * * [N]o Person shall be convicted without the Concurrence of two thirds of the Members present.” Art. I, § 3, cl. 6.
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office . . . but the Party convicted shall nevertheless be liable and subject to Indictment. . . .” Art. I, § 3, cl. 7.
Art. II, § 4 speaks only of removal from office. The President and other officers “shall” be removed. If you are not in office you obviously cannot be removed, so this section does not use the word “person.” This section commands the Senate to remove the officer once they have convicted the President, Vice President or civil officer. It is silent about disqualification, however.
In contrast to Article II, § 4, Art. I, § 3, cl. 6, uses the word “Person,” not “President,” “Vice President,” or “Officers.” A “person” may be convicted by the Senate. There is no requirement that they be at the time the “President,” “Vice President,” or “Officer.” When this clause speaks about the power of the Senate to conduct the trial, it does not grant the “Power to try all” civil officers. It grants the “Power to try all Impeachments,” that is, to try anyone who has been impeached by the House of Representatives.
Finally, Art. I, § 3, cl. 7 limits the Senate’s power to removal from office and disqualification. The Senate may not attaint a person. (convict someone of a crime and impose criminal punishment without trial.) Impeachment does not entail criminal punishment, although the “Party convicted” may be indicted, etc., in the courts. The clause uses the word “Party,” not “President, Vice President, and all civil Officers.” “Party” contemplates those who have left or been removed from office.
The Constitutional Convention chose words deliberately. The Convention could have substituted “any civil Officer” for the broad “Persons” in Art. I, § 3, cl. 6 if it had wanted to prohibit the trial of a President who had left office.
Historical practice proves the original meaning. When the Constitution was being written, the British House of Commons had impeached Warren Hastings — two years after he had left office. Great Britain was "The model from which the idea of this institution [impeachment] has been borrowed.” A. Hamilton, Federalist Papers No. 65.
In 1846, after he had left the Presidency, John Quincy Adams said, “I hold myself . . . amenable to impeachment by this House for everything I did during the time I held any public office.” Deschler’s Precedents of the House of Representatives, p. 2193 (1994). In 1876, the House of Representatives impeached William Belknap after he had resigned as Secretary of War.
Anyone who claims to be true to the original meaning of the Constitution cannot reach any conclusion other than the Senate may try, convict, and disqualify from future office, a President who has left office after he was impeached.
Jeffrey T. Renz is a retired clinical professor of law at the Alexander Blewett III School of Law at the University of Montana. He is also a visiting professor at Ivane Javakhishvili Tbilisi State University in Georgia.