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The attorneys writing at Congressional Research Service start at the beginning. “As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office,” they write. “This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office.” That’s following the precedent of British law and practice, which included the impeachment of the former governor-general of Bengal Warren Hastings, impeached two years after his resignation and while the Constitutional Convention was actually happening. The Framers were aware of this while it was happening, and in crafting the impeachment articles did depart from some British precedent—for example requiring a two-thirds rather than simple majority vote for conviction—but they didn’t explicitly restrict Congress’s power to convict a departed official.
There’s the plain text of the Constitution, however, which doesn’t really definitively say one way or the other. “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment … and Conviction.” Then there’s the other part: “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 [emphasis added],” which follows from removal from office. How could you disqualify an already-departed and deserving official from holding future office if you couldn’t impeach them first? As one scholar argued all the way back in the 1920s, “an official’s resignation following an initial impeachment by the House but before conviction in the Senate may not ‘deprive the people of the full measure of the protection afforded them’ through the additional remedy of disqualification.”
What was in the Framer’s heads isn’t too hard to divine, either. They told us. CRS relates this: “President John Quincy Adams, who, during debate on the House’s authority to impeach Daniel Webster for conduct that occurred while he had been Secretary of State, said in relation to his own acts as President: ‘I hold myself, so long as I have the breath of life in my body, amenable to
impeachment by this House for everything I did during the time I held any public office.'” There’s also the precedence of the 1876 impeachment of Secretary of War William Belknap for, essentially, bribery—accepting payments in return for making an appointment. Belknap resigned hours before a House committee determined there was “unquestioned evidence of malfeasance,” but the committee recommended impeachment anyway, despite his resignation. The House debated moving forward, and ultimately approved the resolution, without objection. The Senate debated and deliberated on the issue of whether he could be tried in the Senate as a former official for more than two weeks, and ultimately “determined by a vote of 37 to 29 that Secretary Belknap was ‘amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of said office before he was impeached.'” That vote established the representation of an impeached former official being subject to a Senate trial. A majority voted to convict, but not a two-thirds majority.
What the CRS report does not go into deeply, and what would be the larger point of a Trump conviction, is the disqualification part. That would come in a simple majority vote following a successful conviction, and would prevent Trump from ever holding “any office of honor, trust or profit under the United States.” They can’t get to that part—the part that matters to McConnell and plenty of other Republicans—if they don’t do the first part, convict.
McConnell’s condemnation of Trump on Tuesday means little more than McConnell trying to create distance between himself and the man he—almost single-handedly—allowed to remain in a position in which he could raise an insurrection against McConnell’s own branch. This could have been prevented if, one year ago, McConnell and Senate Republicans had offered even one word of rebuke to contain Trump. If at any point in the last four years McConnell had done anything to curtail Trump’s worst instincts. Hell, if we wound the clock back to late summer 2016 when the entire intelligence community was warning congressional leadership that Russia was intervening in the election on Trump’s behalf, when McConnell refused to let that information be made public. But I digress.
Yes, Trump can still be impeached, convicted, and barred from ever holding office again. That’s if Senate Republicans care more about the country, about their own institution, about the future of their own party than about their next election and whether the MAGA crowd will primary them.
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