There’s a very strong argument that the Constitution does not permit impeachment of a former president. Unfortunately, President Donald Trump’s lawyers failed to present it.
Even though I’m undecided on late impeachment, it’s frustrating and painful for me to see a legal team drop the ball that way.
This article will lay out, step by step, the most important evidence against the constitutionality of late impeachment.
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Unless there’s something really unusual going on, I know from the list that she’s not asking me to buy German chocolate cake. If I buy it anyway (as I might), it’s my own idea and not her instruction.This rule—that items not on a list are excluded—was at least as important during the Founding Era as it is today. Participants in the 1787–1790 constitutional debates referred to this rule as a way to construe the document. The rule also played a big role during the debates over the Bill of Rights. It was so prominent that the Founders passed an entire constitutional amendment (the Ninth) to prevent it from applying in a particular case.
In Great Britain, Parliament could impeach private citizens who had never held political office. Everyone understands that this is not true in the United States. Why? Because private citizens who have never held office are not on the Constitution’s list.
But wait: Former officers are not on the list, either. A former president isn’t the same as the current president. That’s the real reason Chief Justice Roberts is not presiding over this trial: The Constitution directs him to preside only when the president is tried, not a former president.
Are Trump’s prosecutors arguing that the Constitution’s list of impeachable persons simultaneously excludes and includes persons not mentioned? That it excludes private citizens who have not held office, but it includes private citizens who have held office? This seems to be a blatant contradiction.
Conclusion: According to the uniform way we interpret lists in the Constitution, former officers are not impeachable.
- Contrary to the claim of the impeachment prosecutors, the Constitution doesn’t leave us without remedies against ex-officers. Rather, the Constitution explicitly mentions prosecution according to law.
- The Constitution has a general policy against certain kinds of legislative unfairness. It appears in several important sections, such as the ban on bills of attainder. This policy suggests we should interpret impeachment narrowly.
- Lead impeachment manager Rep. Jamie Raskin (D-Md.) said, “Every single state Constitution in the 1780s either specifically said that former officials could be impeached or were entirely consistent with the idea. In contrast, not a single state Constitution prohibited trials of former officials.”
But Raskin is wrong. By a fair reading, the state constitutions of New York and Massachusetts limited impeachment to sitting officers. And the framers took the U.S. Constitution’s impeachment language largely from the New York and Massachusetts documents. They didn’t follow the constitutions of states such as Virginia, which permitted late impeachment. - You can trace a process during the Founding Era by which Americans gradually made impeachment more narrow than it had been in Britain.