Chicago-Kent Law Review

Volume 95 Issue 2 Impeachment and the President Article 6

1-26-2021

Can President Trump Be Impeached as Mr. Trump? Exploring the Temporal Dimension of Impeachments

Harold J. Krent Chicago-Kent College of Law

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Recommended Citation Harold J. Krent, Can President Trump Be Impeached as Mr. Trump? Exploring the Temporal Dimension of Impeachments, 95 Chi.-Kent L. Rev. 537 (2021). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol95/iss2/6

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 42699-ckt_95-2 Sheet No. 47 Side A 11/23/2020 10:40:39 . EV 405 .L.& EV .L.R Impeach- TATES .R HI S EX MPEACHMENT I Can Former Pres- Former Can , 6 T , 6 NITED NITED U , 76 U. C EDERAL F HE ,T a continuous power was articulated Salvador Rizzo, Rizzo, Salvador * Removal of the President: Resignation ERHARDT ONSTITUTION OF THE ONSTITUTION OF against see also see C RENT They reason that, even when an an even when that, They reason J. G 1 J. K (Dec. 6, 2019,2:00 AM), 537 537 OST ICHAEL The Constitutional Casefor the Impeachabilityof Former NTRODUCTION I AROLD ) 10/18/2020) 4:41 PM .P H Executive Branch Contempt of of Congress Contempt Branch Executive , 1974, L. Duke J.1023, 1101 (1975); ArthurBestor, ASH ELETE IMPEACHMENTS OMMENTARIES ON THE D , C OT N O , W TORY S . 255, 277–78 (1973) (book review); review); (book (1973) 277–78 255, . EV 1 FINAL (D USTICE USTICE EXPLORING THEEXPLORING TEMPORAL DIMENSION OF .L.R ACRO M ASH CAN PRESIDENT TRUMP BE IMPEACHED MR. AS TRUMP? 81–83 (3d ed. 2019); Brian C. Kalt, C. Kalt, Brian 2019); ed. (3d 81–83 RENT RENT K President Trumpis only the fourth executive branch officer in the na- as well. been resolved never have of impeachment aspects Temporal , 49 , 49 W . 13, 18 (2001-2002); Josh Chafetz, Chafetz, Josh (2001-2002); 18 . 13, ROCESS OL idents be Impeached? idents the constitution contemplated, that the party was still in office at the time of impeachment.”), but few few but impeachment.”), of time the at office in still was party the that contemplated, constitution the lead. his followed have 1083, 1152 (2009); Edwin Brown Firmage & R. Collin Mangrum, Mangrum, Collin R. & Firmage Brown Edwin (2009); 1152 1083, Impeachment of Law Procedural the and ment tion’s history to be impeached by the House of Representatives, not one of of one not of Representatives, House the by impeached be to history tion’s constitu- many surprisingly, Not Senate. the by removed been has whom pro- impeachment the in roles and Senate’s the House about questions tional must impeached; be officer an can conduct what for unanswered: remain cess an does as an officer; serving while undertaken be conduct impeachable the choice, or her of his witnesses introduce to right the have officer impeached and so on. and impeach can road the down Congress a Democratic whether Consider did not of course, The House, office. he leaves after Trump President convict have may omission that but resignation, Nixon’s President after vote a take power. constitutional to want of as opposed prudence of political been out an of removal the that concluded have issue the considering academics Most ju- Congress’s defeat not does office from judge or officer branch executive the officer. and try impeach to risdiction https://www.washingtonpost.com/politics/2019/12/06/can-former-presidents-be-impeached/ Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment of Late and Practice History, Law, of the An Analysis Officials: Federal * Professor, Chicago-Kent College of Law. I thank Brian Kalt and Mark Rosen for comments on earlier earlier on comments for Rosen Mark and Kalt Brian thank I Law. of College Chicago-Kent Professor, * P P (vol. 3 1833) (“If, then, there must be a judgment of removal from office, it would seem to follow, that that follow, to seem would it office, from removal of a judgment be must there then, (“If, 3 1833) (vol. [https://perma.cc/BSY4-VYAR] (reporting that ProfessorsKeith Akhiland Amar Whittington support a commentary leading The of impeachment). power continuous by Justice Story in J Story by Justice drafts. drafts. 1. Fora representative sampling, see M 42699-ckt_95-2 Sheet No. 47 Side A 11/23/2020 10:40:39 A 11/23/2020 47 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 47 Side B 11/23/2020 10:40:39 , ALT , 106–32 , 106–32 C. K RIAN NEMIES E [Vol 95:2 [Vol RESIDENTS AND THEIR P I ART P 2 UIDE FOR G ) 10/18/2020) 4:41 PM EGAL EGAL ELETE D CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT OT :AL N note 1, at125. O supra supra 3 LIFFHANGERS 1 FINAL (D C , Kalt, , Kalt, ACRO M See, e.g. See, RENT RENT 538 538 K Although neither the constitutional language nor sparse history is clear, is history clear, nor sparse language the constitutional neither Although of ex- impeachment of history the scant summarize briefly I I, Part In As a matter of history, there is considerable support for a continuing continuing a for support considerable is there history, of matter As a ONSTITUTIONAL (2012). I argue below, based on a structural understanding of our system of separated of separated our system of understanding a structural on below, based argue I in is when an officer impeachment can only initiate Congress that powers, balances and checks of system the preserving about is Impeachment office. individual. the punishing not time, at a given Part In Constitution. of our led up to ratification that officials branch ecutive of the Constitution, II and I in Article clauses impeachment focus on the I II, trigger can only that the House a reading extent, to a limited which support, in currently office. individuals In Part for III, Iimpeachment examinethe which in Constitution the of ratification after arisen have that precedents few that who does not at an officer to impeach whether considered has Congress impeach- Congress’s argue that I IV, in Part Finally, the office. occupy time posi- from officers remove to as a weapon understood best is authority ment an officer disqualify to power the concomitant that and power, public of tions rem- impeachment the transform not does trust public of offices future from officers of heads the over hanging of Damocles Sword potential a into edy resemble would power impeachment the Otherwise, lives. their of rest the for of a sitting opponents punish to be used as a tool and could Attainder a Bill of who pre- candidates party opposition leading as disqualify well as Congress pol- in federal participating from trust of public offices in served had viously in the future. itics power of impeachment even after the officer has left office. The British par- The British office. left has officer the after even impeachment of power 1776 after legislatures state the of a number power, such exercised liament not did clauses impeachment the enacting in Framers and the did as well, tradition. that reject directly C B also see con, and pro arguments the of summary informative an For 3. 2. 2. officer is no longer in “office,” the House may still impeach and the Senate Senate the and impeach still may the House “office,” in longer no is officer fu- in the in office serving from the individual to disqualify order in convict impeach to support galvanize to tried Congress of members Indeed, ture. office. left he after Clinton President 42699-ckt_95-2 Sheet No. 47 Side B 11/23/2020 10:40:39 B 11/23/2020 47 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 48 Side A 11/23/2020 10:40:39 , . 9 6 an an UMAN .H ERHARDT after after A V 539 539 NCYCLOPEDIA NCYCLOPEDIA , E note 1, at 22-28, and G supra For instance, the House of Com- of House the instance, For 4 The House of Commons also also of Commons The House 5 The Vermont Constitution also covered covered also Constitution The Vermont 8 ) 10/18/2020) 4:41 PM Cong. 226 (1998). (1998). 226 Cong. th ELETE D , 105 note 1, at 29–33. 29–33. 1, at note OT note4. N Virginia’s Constitution explicitly addressed the tim- the addressed explicitly Constitution Virginia’s 7 Thomas Jefferson as Governor of Virginia of Governor as Jefferson Thomas O supra 12 supra THE TEMPORAL DIMENSIONSIMPEACHMENT OF Kalt, Kalt, . of1776, art. XVI. . of1777, ch. § II, XX. 1 FINAL (D 11 ONST ONST ACRO M sources cited cited sources .C .C Some of the other state constitutions as well explicitly or implicitly implicitly or explicitly as well constitutions state the other of Some A T 10 Id. See generally See See Background and History of Impeachment: Hearing Before the House Subcomm. On the the On Subcomm. House the Before Hearing Impeachment: of History and Background See Id. See RENT RENT 2020] 2020] K Nor did the question of the timing of impeachments loom large at the the at large loom impeachments of timing the of question the Nor did Parliament’s impeachment authority included the power to impeach impeach to power the included authority impeachment Parliament’s In the newly independent states, legislatures also impeached state offi- state impeached also legislatures states, independent newly the In note 1, at 49–54. 12. 12. mons impeached and the House of Lords convicted Lord Chancellor Mac- Chancellor Lord convicted Lords of the House and impeached mons office. left he after in 1725 clesfield 11. 11. 10. 10. sanctioned impeachment after the officeholder left office, while others did did others while office, left officeholder the after impeachment sanctioned not specify. 9. V 9. individual left office. left individual Constitutional Convention. Several members cited the ongoing impeach- ongoing the cited members Several Convention. Constitutional specifi- did not they but Lords, of House in the Hastings Governor of ment continued power impeachment the whether the question debate cally former officers, and indeed, private parties. private and indeed, officers, former 8. V https://www.encyclopediavirginia.org/Jefferson_Thomas_as_Governor_of_Vir- 2016), 21, (Nov. [https://perma.cc/FZR3-LMUV]. ginia#start_entry 8. the timing question, providing that “Every officer of State, whether judicial judicial whether State, of officer “Every that providing question, timing the either Assembly, General the by impeached to be liable be shall or executive, maladministration.” for removal or resignation, his after or office, when in 4. The followingcondensed is from expositionKalt, in The Vermont legislature impeached former assemblyman Jonathan Fassett Fassett Jonathan assemblyman former impeached legislature The Vermont debt col- to frustrate courts county down closing on bent rioters for leading lection. On the other hand, given that Parliament enjoyed the power to impeach pri- impeach to power the enjoyed Parliament that given hand, On the other convict and impeach could it that the fact as officers, as well vate citizens surprising. that not is officers former remembered, not widely Although in office. were they no longer after cials af- Thomas Jefferson impeaching considered briefly legislature the Virginia the during governor as duties his for abandoning governorship the he left ter Independence. for War Constitutionthe of Judiciary Comm. 6. 6. 7. Michael McDonnell, ing issue, providing that impeachment could only proceed against “[t]he “[t]he against proceed only could impeachment that providing ing issue, office.” of is out when he Governor, impeached the first Governor-General of India, Warren Hastings, after he he after Hastings, Warren of India, Governor-General first the impeached him. acquitted ultimately of Lords House the although in 1786, office left 5. supra 5. 42699-ckt_95-2 Sheet No. 48 Side A 11/23/2020 10:40:39 A 11/23/2020 48 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 48 Side B 11/23/2020 10:40:39 The The 15 note 1, at supra 14 . Moreover, the President the President . Moreover, But, the history of the the of But, the history infra 13 34–53 (2017). [Vol 95:2 [Vol Those supporting a contin- Those supporting UIDE 17 G II ITIZENS ART P :AC ) 10/18/2020) 4:41 PM 18 ELETE note 1, at 81. 81. at 1, note D CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT MPEACHMENT OT N ,I note 1, at 82. supra supra O , That Clause provides that judgment in impeachment impeachment in judgment that provides Clause That 16 supra , UNSTEIN . art. II, § 4. § 4. II, . art. . 6. § 3, cl. I, art. ERHARDT 1 FINAL (D R. S , G ONST ONST ERHARDT ASS ACRO C C G M C See See, e.g. See, See RENT RENT 540 540 K Supporters of the continuous impeachment thesis principally rely on the the on rely principally thesis impeachment continuous the of Supporters The Framers narrowed Parliament’s impeachment power in several crit- several in power impeachment Parliament’s narrowed Framers The Squaring a continuous power of impeachment with the constitutional constitutional the with impeachment of power a continuous Squaring impeachment clause in Article I, which admittedly leaves more wiggle room room wiggle more leaves admittedly which I, in Article clause impeachment issue. on the timing 14. 14. impeachment clauses does not shed much light on the timing of impeach- of timing the on light much not shed does clauses impeachment in and in England that, aware were The Framers the other. or one way ments officers, to impeach power a continuous enjoyed legislature the states, some when even explicitly, Constitution in the issue the to address failed and yet citizens. private to impeach power legislature’s the removing Misdemeanors” and crimes “high the to language “officer” the link They conduct. what for but im- be peached can whom not identify to instead 16. language constitutional the that construed and have Some impeachment, to subject is Office in while committed misconduct only that conclude to phrase Kalt, hands. Congress’s in impeachment of timing of question the left Constitution the 15. U.S. 15. uous power therefore read the Article I provision as implicitly conferring on on conferring implicitly as provision I Article the read therefore uous power as the office from disqualification to pursue of whether choice the Congress two the harmonize They relevant. longer no is removal even when remedy required is from office removal that concluding by provisions impeachment of irrespective possible is disqualification but sitting, still is officer when an serves. still an officer whether 18. 18. 13. 13. language, however, is far from simple. Article II provides that all officers officers all that provides II Article simple. from far is however, language, Convic- and for, on Impeachment Office from removed be “shall impeached Misdemeanors.” and crimes high or other Bribery, Treason, of, tion cases “shall not extend further than to removal from Office, and disqualifi- and Office, from to removal than further extend not “shall cases Office.” [federal] any and enjoy hold to cation Clause in Article II does not address the timing issue explicitly, yet appears yet appears explicitly, issue the timing address does not II in Article Clause i.e., possible, is “removal” when only “officers” of impeachment limit to serving. still is officer the when 64. That reading, however, suffers from the same difficulties addressed, addressed, difficulties same the from suffers however, reading, That 64. ical ways. The remedy was confined to removal from office or disqualifica- office from removal to confined was remedy The ways. ical penalties); criminal of range full to the opposed (as office future from tion con- and be impeached; could parties to private opposed as only “officers” vote. on a two-thirds based possible was only viction then could not be impeached for fraud during an election, and other officers as well would be immune for for be immune would well as officers other and election, an during fraud for U.S. impeached be not could then office. assuming before misconduct 17. 42699-ckt_95-2 Sheet No. 48 Side B 11/23/2020 10:40:39 B 11/23/2020 48 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 49 Side A 11/23/2020 10:40:39 .L. T .S LEV 23 , 61 C infra. 541 541 And, given that the Framers were were the Framers And, given that 22 ) 10/18/2020) 4:41 PM The more likely reading of that provision is is provision of that reading likely The more 19 officer, but does that safeguard still exist when when exist still safeguard that but does officer, the same shall devolve on the Vice President, devolve on the Vice President, the same shall ELETE D Interpreting Precise Constitutional Text: The Argument for a New New a for Argument The Text: Constitutional Precise Interpreting OT N note 1, at 80. I address some of these problems, problems, these of some address at 80. I 1, note sitting sitting The Framers presumably used “officers” in the same same the in “officers” used presumably Framers The O 21 supra , THE TEMPORAL DIMENSIONSIMPEACHMENT OF . art. II, § 1. § 1. II, . art. . art. I, § 6 also provides that no member of the House or Senate can simultaneously can simultaneously or Senate House of the no member that provides § 6 also I, art. . 1 FINAL (D ONST ONST 20 ERHARDT ACRO C C Seth Barrett Tillman, G M See See RENT RENT 2020] 2020] K Given the context, it makes little sense to construe “officer” to include to include “officer” construe to sense little it makes context, the Given The above reading of the Constitution strikes me as strained for three for three strained as me strikes Constitution the of reading The above Indeed, the term “Officer” used elsewhere in Article II lends support to to support lends II Article in used elsewhere “Officer” term the Indeed, Second, a continuous power of impeachment generates a series of of a series generates impeachment of power a continuous Second, In Case of the Removal of the President from Office, . . . the Powers and. the . In Case of the Removal. of President the from Office, Duties of the said Office, . . . and Vice President [if the is incapacitated] Congress may by Law Officer shall such and President, act as then shall Officer declar[e] what President Disabilityact accordingly,be the a until shall removed, or be elected. . 285, 290 (2013). (2013). 290 285, . EV all that is at stake is disqualification? Probably, but for the last 100 years, the the 100 years, last the for but Probably, disqualification? is stake is at that all hold- from official impeached an disqualify can it that maintained has Senate times. three so done has it and vote, majority on a based ing office serve as a civil officer, which bolsters the understanding that the Framers deployed the term to refer to to to refer term the deployed the Framers that understanding the bolsters which officer, as civil a serve contemporaneously. office holding those 22. Interpretationthe of IncompatibilityClause, the Removal& Disqualification Clause, andthe Religious Assassination & Impeachment Chafetz’s Josh Professor to Response Clause—A Test 21. U.S. 21. 23. 23. former officeholders. former reasons. First, the Framers provided that all “officers” “shall be removed removed be “shall “officers” all that provided Framers the First, reasons. on Impeachment.” office from R 20. U.S. 20. 19. § 4. II, art Const. U.S. that “officers” describe those who have an “office,” as opposed to those who who those to opposed as “office,” an have who those describe “officers” that ap- seemingly Clause the of grammar, As a matter previously. had an office dur- served have may who those to opposed as officeholders, current to plies previously. years even or month prior ing the hold- office sitting against proceed only can impeachment that argument the that: provides II, in Article also Clause, Succession ers. The aware that some states had championed a continuous power of impeachment of impeachment power a continuous had championed some states aware that indi- when place take impeachments that specify to decision their explicitly, telling. seems office” from removed “be could viduals even officer a former impeach a House can example, For problems. thorny time that and at office in was officer the while issue the debated the House if a prior after officer a former convict a Senate can Or, to impeach? declined a two- muster must Senate the that know we Moreover, acquitted? has Senate a convict to vote thirds sense in companion clauses in Article II. in Article clauses in companion sense 42699-ckt_95-2 Sheet No. 49 Side A 11/23/2020 10:40:39 A 11/23/2020 49 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 49 Side B 11/23/2020 10:40:39 27 24 note supra The House im- The House The first federal federal first The 26 25 the House impeach- the House after after [Vol 95:2 [Vol Although Blount principally principally Blount Although 28 III ART P ) 10/18/2020) 4:41 PM ELETE D CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT OT N O note 1, at 84-97. , 29th Cong., 1st Sess. 641 (1846). Adams spoke in support of the House’s power power House’s the of support in spoke Adams (1846). 641 Sess. 1st Cong., 29th , 1 FINAL (D supra LOBE .G ACRO M Kalt, Kalt, at 86. 86. at 86–87. at ONG The Senate voted not to reach the merits of the House’s impeachment impeachment House’s the of merits the to reach not voted The Senate See Id. Id. Id. Id. RENT RENT 29 542 542 K Third, although the Impeachment Clause in Article I states that the pen- the that states I in Article Clause Impeachment the although Third, To this point, I have relayed that legislatures enjoyed the power in Eng- in power the enjoyed legislatures that relayed have I point, To this On two occasions in our history, Congress considered impeaching impeaching considered Congress history, in our On two occasions alty for impeachment shall not extend beyond removal and disqualification disqualification and removal beyond extend not shall impeachment for alty be can of punishment type on what limit a as reads clause that office, from signal- were presumably Framers The “when.” addressing than rather meted penalties additional which under practice the British from change ing the im- the that suggesting Clauses in the language no is There were possible. is continuous. authority peachment 24. C 24. After the expulsion the Senate convened a trial to determine whether to con- to whether determine to trial a convened Senate the expulsion the After impeach. to vote House’s the upon him vict land and to a lesser extent in the newly independent states to impeach officers officers impeach to states independent newly the in extent lesser a to and land clarify not did Framers the reason, whatever for that, but office left they after language constitutional the that argued then I Constitution. the in power that who officer an impeaching of prospect the against somewhat militates itself that suggests however, history, post-enactment The in office. is no longer were they after officers impeach to power legislative in a believed still many down as President, stepping after decades instance, For in office. no longer so myself, hold “I House: of the as a member declared Adams John Quincy by impeachment to amenable body, my in life of breath the have I as long office.” public any held I time the did during I everything for House this 1, at 91. 1, at 91. impeachment case centered on Senator William Blount, who evidently lent lent evidently who Blount, William on Senator centered case impeachment and/or convicting officers who in were no longer office. officers convicting and/or to impeach Daniel Webster for conduct he previously committed as Secretary of State. Kalt, Kalt, State. of Secretary as committed previously he conduct for Webster Daniel impeach to peached him on July 7, 1797, and the next day the Senate expelled him. expelled the Senate day next and the 7, 1797, on July him peached clause’s impeachment the within fall did not he, as a Senator, that argued from removed be not could he that argued he also officer,” “civil of category him expelled already had Senate the because office 25. 25. 26. 27. 28. 29. his services to a treasonous plot to help Great Britain. Great to help plot treasonous to a his services ment. 42699-ckt_95-2 Sheet No. 49 Side B 11/23/2020 10:40:39 B 11/23/2020 49 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 50 Side A 11/23/2020 10:40:39 543 543 at 108–21. at 108–21. The House decided decided The House 31 See id. IV ART P ) 10/18/2020) 4:41 PM ELETE and this precedent, therefore, represents a lim- represents therefore, precedent, and this D 33 OT N O After much discussion, the Senate voted 37–29 that it it that 37–29 voted the Senate discussion, After much 32 THE TEMPORAL DIMENSIONSIMPEACHMENT OF 1 FINAL (D ACRO M at 94. 94. at 94–96. at at 126–27. 126–27. at at 127–29. at 127–29. 34 Id. Id. Id. Id. RENT RENT 2020] 2020] K I argue, first, that the power to impeach a former officeholder is not not is officeholder former a impeach to power the that argue, first, I The impeachment of Secretary of War William Belknap in 1876 poses in 1876 poses Belknap William War of Secretary of The impeachment Although the historical precedents cannot be overlooked, impeachment impeachment be overlooked, cannot precedents the historical Although Congress cannot directly participate in law execution or judicial deci- judicial or law execution in participate directly cannot Congress 30 35 35. office. left has officer the after wanes of course, public, the protect to need The 34. Precedents from state impeachmentproceedings aremixed. 31. 31. 32. 30. 30. charges, but the reasons for the decision to drop the case were not spelled spelled not were case the to drop decision the for reasons the but charges, out. 33. 33. sion-making, but it can ensure that those who exercise law execution execution law exercise those who that ensure can it but sion-making, or misdemeanors. crimes high not committed have judging and functions provi- surrounding upon based that second, measure; deterrence a as critical impeachment offenders, punish to authority congressional limiting sions past; in the that not misconduct, contemporaneous address be used to should the fact after years twenty tool impeachment an use of that and, finally, vin- be would it power, intergenerational of questions raise only not would Fram- the by feared roundly so Attainder of Bills the with tension in dictive, ers. that it could continue with the investigation and voted shortly thereafter to to thereafter shortly voted and the investigation with continue it could that Belknap. impeach a more relevant precedent. The House investigated Belknap for financial for financial Belknap investigated The House precedent. relevant a more resolution. to any prior resigned and Belknap fraud, maintained jurisdiction over Belknap, despite his resignation. Ultimately, the the Ultimately, resignation. his despite Belknap, over jurisdiction maintained Belknap, acquitted Senate as understood within our framework of separated powers should reach only only reach should powers separated of framework our within as understood im- balances, and checks of system our Within office. holding still those in the co- misconduct counteract to Congress means a provides peachment constitutional abuses judge or state of a secretary If branches. ordinate pub- the protect thereby and ouster or her his can ensure Congress authority, lic. ited factor weighing in favor of the House’s authority to remove an officer officer an remove to authority House’s the of favor in weighing factor ited who has left office (and the Senate’s authority to disqualify that officer), officer), that to disqualify authority Senate’s the (and office who has left was when he started had case in his proceedings impeachment even though in office. 42699-ckt_95-2 Sheet No. 50 Side A 11/23/2020 10:40:39 A 11/23/2020 50 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 50 Side B 11/23/2020 10:40:39 , Im- 36 OMMISSION ON OMMISSION ON DOPTION OF THE C A 39 ATIONAL N [Vol 95:2 [Vol ONVENTIONS ON THE C EPORT OF THE THE EPORT OF TATE R (2004), (2004), https://govinfo.library.unt.edu/911/re- S INAL INAL TATES S :F EVERAL and, on several occasions, Congress has has Congress occasions, several and, on S A. Deterrence A. Deterrence 38 ) 10/18/2020) 4:41 PM EPORT NITED R ELETE U D CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT OT Congressional Hearings on Surveillance Programs to Kick Off—in Se- Off—in Kick to Programs Surveillance on Hearings Congressional N EBATES IN THE O note 1, at 69–72. Future Supreme Court Justice James Iredell at the Con- the at Iredell James Justice Court Supreme Future 69–72. at 1, note OMMISSION PON THE If Congress Doesn’t Impeach and Remove Trump, It Could Still Censure Him Censure Still Could It Trump, Remove and Impeach Doesn’t Congress If supra 32 (Jonathan Elliot ed., 2d ed. 1836). Of course, the deterrence argument does does argument deterrence the course, Of 1836). 2d ed. ed., Elliot 32 (Jonathan U (Jan. 28, 2016, 7:14 AM), https://theintercept.com/2016/01/28/congressional-hear- https://perma.cc/5YFM-H7RC]. 1 FINAL (D 9/11 C , Kalt, , Kalt, HE HE (Nov. 21, 2019), https://nymag.com/intelligencer/2019/11/barring-impeachment-demo- 2019), 21, (Nov. ACRO TTACKS M T Ed Kilgore, Jenna McLaughlin, A ONSTITUTION NTERCEPT See, e.g. See, See See See I C RENT RENT and domestic surveillance and domestic 544 544 K Second, existing political process safeguards should minimize the risk risk the minimize should safeguards process political Second, existing be the likely would which for reelection, run does not a President If Supporters of a continuing power of impeachment have argued that, if if that, argued have impeachment of power continuing a of Supporters Under our constitutional scheme, however, ample political checks re- checks political ample however, scheme, constitutional Under our HE 37 , T ERRORIST EDERAL NTELLIGENCER vention stated that impeachment “will be not only the means of punishing misconduct, but it will prevent prevent it will but misconduct, punishing of the means only not be “will impeachment that stated vention to ready be may him, punish to tribunal no is there that knows who office public in man A misconduct. . duty D . his 4 . .” from deviate of lawless behavior. If Presidents choose to run for reelection after resigning, resigning, after reelection run for to choose Presidents If behavior. of lawless the Found- at limits term no were there And, disapproval. electoral face they as the wrongdoing with as concerned not be might the public ing. Although account into conduct challenged that take will likely the voters is Congress, unfolded. process impeachment if no even resignation), of fact the (and at fare will her party or how his about concerned be may well or she case, he ings-on-surveillance-programs-to-kick-off-in-secret/ [https://perma.cc/CRR2-DBYW]. [https://perma.cc/CRR2-DBYW]. ings-on-surveillance-programs-to-kick-off-in-secret/ T 36. 36. F judges III Article of impeachments more been have there Ironically, life. for serve who judges to apply not officials. branch executive of than by far 37. peachment, in part, serves to ensure that officers conduct their duties duties their conduct officers that to ensure serves in part, peachment, of for impeachment advocated of Congress members Some conscientiously. In- pardons. eleventh-hour to his due office left he after Clinton President impeachment is tied to holding office, there would be little to deter a Presi- to deter little be would there office, to holding is tied impeachment office. days in final the in misconduct from officeholder dent or other port/911Report.pdf [ port/911Report.pdf directed resolutions of censure at executive branch officials. branch executive at censure of resolutions directed crats-could-still-censure-trump.html [https://perma.cc/7WTF-KQPN]. [https://perma.cc/7WTF-KQPN]. crats-could-still-censure-trump.html 38. 38. deed, if officers could escape impeachment through a last-minute resigna- last-minute a through impeachment escape could officers if deed, a public in serve to ability the retain could they Nixon, President with as tion, attach. would disqualification post in the future—no cret 39. 39. main even if offenders can escape disqualification. First, Presidents and and Presidents First, disqualification. escape can offenders if even main by not if wrongdoing, from deterred be may officers branch executive other at that wrongdoing They know by history. then remedy, the impeachment publicized has Congress record. historical their tarnish may term a of end the after torture of use the as with fact, the after wrongdoing branch executive 9/11 I 42699-ckt_95-2 Sheet No. 50 Side B 11/23/2020 10:40:39 B 11/23/2020 50 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 51 Side A 11/23/2020 10:40:39 United See , James A. Gard- A. , James With respect respect With 40 See, e.g. See, 545 545 . 667, 667–68 (2000). EV .L.R OLUM ) 10/18/2020) 4:41 PM ELETE D , 100 C , 100 OT N O THE TEMPORAL DIMENSIONSIMPEACHMENT OF 1 FINAL (D Reading the Constitution to permit impeachment twenty years years twenty impeachment permit to Constitution the Reading ACRO 41 M B. Allowing Congresses to Look Backwards for Impeachment Impeachment for Look Backwards to Congresses B. Allowing RENT RENT 2020] 2020] K Indeed, the Constitution does not otherwise welcome judgments based based judgments welcome otherwise not does Constitution the Indeed, A continuous power of impeachment would remove the constraint of of constraint the remove would impeachment of power A continuous Finally, the criminal law remains as a deterrent to most impeachable impeachable most to a deterrent as remains law the criminal Finally, Can Party Politics Be Virtuous? contemporaneity. Future Congresses would judge the conduct of Presidents Presidents of conduct the judge would Congresses Future contemporaneity. social and political different a of perspective the from officers civil and other Clinton President Congresses, subsequent of point the vantage From milieu. evidently Johnson Lyndon President problem; #MeToo a had have may the public to lied W. Bush George President race; about spoke disparagingly judgment historical although And, on. so and surveillance, domestic about tangible with comes impeachment of the power be healthy, times, may, at penalties. the Clause, Facto Ex Post the Through conduct. of standards on evolutionary based judged be should individuals that conviction their expressed Framers in arise might that those not conduct, of standards articulated on previously the future. after the fact would allow subsequent Congresses to penalize prior office- prior to penalize Congresses subsequent allow the fact would after evolve. Misdemeanors and Crimes High of as understandings even holders that concern the Framers’ evinces Facto Clause Ex Post the other words, In misconduct. of norms established previously upon only be based punishment norm facto ex post the to exception narrow as a seen be should Impeachment A out. be spelled first not need impeachment warranting conduct the in that the into hole greater much a gouge would impeachment of power continuous that ensures officers sitting to impeachment Confining ideal. facto ex post of law a common 41. recognizing of tradition British the of rejection early Court’s Supreme The ner, ner, 40. parties. political of rise the anticipate not did themselves The Framers the polls, so the constraint of electoral accountability exists. accountability of electoral constraint the so the polls, to an executive branch officer who resigns amidst controversy, there is little little is there controversy, amidst resigns who officer branch executive to an of Senate, The President. different a by reappointment subsequent of chance appointments. all such must ratify course, a what constitutes to determine leeway has Congress Although conduct. the in used examples treason and the bribery Misdemeanor, and High Crime includ- offenses, many other can as criminally, punished can be Constitution and Trump Clinton the of heart the lay at that charges obstruction ing the im- of power for a continuing argument deterrence Thus, the impeachments. overwhelming. is not peachment crimes is to the same effect. Conduct had to be spelled out in advance of criminal prosecution. prosecution. criminal of advance in out spelled be to had Conduct effect. same the to is crimes Statesv. Hudsonand Goodwin,11 U.S. 32, 34 (1812). 42699-ckt_95-2 Sheet No. 51 Side A 11/23/2020 10:40:39 A 11/23/2020 51 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 51 Side B 11/23/2020 10:40:39 [Vol 95:2 [Vol C. Punishment C. Punishment Yet, a continuous power would eliminate eliminate would power continuous Yet, a The Founders enacted the Bill of Attainder of Attainder Bill the enacted The Founders ) 10/18/2020) 4:41 PM 45 44 , Chief Justice Marshall famously wrote that that wrote famously Marshall Justice , Chief 42 ELETE D CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT OT N O 1 FINAL (D note24 and accompanying text. Fletcher v. Peck v. Fletcher ACRO In short, a continuous power is difficult to reconcile with ex post ex post with to reconcile difficult is power short, a continuous In M 43 See supra See RENT RENT 546 546 K To the former officer targeted, a continuing power of impeachment power of impeachment a continuing targeted, To officer the former At the same time, the continuous power could tempt majorities in the the in majorities tempt could power continuous the time, same At the then Congress Senate. the in a supermajority and House the of majority a holds party one that Assume potential 43. are who the system. party game to opposite loyalists the party of invite could officers branch impeachment executive of continuing a power former by Moreover, misconduct up dredge could candidates in the upcoming election. 44. removal from separately disqualification for vote 10 U.S. Senators 87, 137–38 (1810). precedent, Senatorial under officer an ing remov- before supermajority 45. two-thirds im- a after reach must Senate, the of Senate the majority bare a Although then exists. hold, risk Another precedent that Should vote. majority a upon merely the in inserted level two-thirds extraordinary The officer. civil a convict could House, the by peachment evaded. be would Constitution disqualification for vote two-thirds a that argue might power impeachment continuous a of Supporters House and Senate to seize current political advantage by visiting impeach- by visiting advantage political current seize to Senate House and ma- The other party. of the officers and civil Presidents former upon ment minority the of officeholders former impeach to threaten could party jority other or appropriations a particular on forthcoming is support unless party law- distort might impeachment of threat ongoing the words, other In bill. making. any notion of a statute of limitations and subject civil officers to a perpetual to a perpetual officers civil and subject limitations of of a statute any notion fade. and evidence as memories even of impeachment, threat “the framers of the [C]onstitution viewed, with some apprehension, the vio- the apprehension, some with viewed, [C]onstitution the of framers “the and thereby moment,” of the of the feelings out grow might lent which acts of At- to pass Bills legislatures and state of Congress power the restricted laws. facto post ex and tainder facto principles and, as a functional matter, might interfere with the balance balance the with interfere might matter, functional a as and, principles facto Constitution. the in prescribed otherwise of powers of Bill constitutionally-banned the as does problems same the of many raises In Attainder. 42. 42. presidents and civil officers will be judged by contemporaries, despite the the despite contemporaries, by judged be will officers civil and presidents Adams. Quincy John of offer prohibition to prevent the legislature from singling out individuals for pun- for individuals out singling from legislature the to prevent prohibition safe- the with consistent meted be only can punishment ishment—criminal process. judicial the of guards wouldbe needed if therehad been noprior two-thirds vote for removal.The answer may be thatthe Senate precedent is just wrong—that the Senate should either automatically disqualify all convicted of- convicted all disqualify automatically either should Senate the wrong—that just is precedent Senate ficers from holding office in the future or disqualify based on the same two-thirds vote required to remove remove to required vote two-thirds same the on based disqualify or future the in office holding from ficers anofficer office. from But, the Senate’s practicedoes suggestthedanger in separating the removal and temporaneously. disqualification remedies—once removalno is longer relevant. Both remedies shoulddeterminedbe con- 42699-ckt_95-2 Sheet No. 51 Side B 11/23/2020 10:40:39 B 11/23/2020 51 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 52 Side A 11/23/2020 10:40:39 , Disquali- 51 At stake was dis- 547 547 Cummings v. Mis- Cummings 49 50 In this age of partisan- this age In United States v. Lovett States United 52 The Court reasoned that “[t]he “[t]he that reasoned The Court 46 ,sim- day, the Court same the decided More recently, in More recently, ) 10/18/2020) 4:41 PM United States v. Brown. v. States United 48 ELETE D OT N O Ex parte Garland Ex parte THE TEMPORAL DIMENSIONSIMPEACHMENT OF 1 FINAL (D And, in ACRO M 47 at 320. at 320. Id. (1946). 316 303, U.S. 328 Id. RENT RENT , for example, the Supreme Court struck down a provision of Missouri’s of Missouri’s a provision down struck Court the Supreme , for example, 2020] 2020] K The possibility of vindictiveness goes beyond disqualification from fu- from disqualification beyond goes vindictiveness of The possibility Moreover, the Supreme Court has construed the Bill of Attainder Attainder of Bill the construed has Court Supreme the Moreover, . One might argue that disqualification from office is more of a preven- a of more is office from disqualification that argue One might 49 fication plainly falls into the type of legislative action that falls within the the within falls that action legislative of type the into falls plainly fication provision. of Attainder the Bill of scope officers all stripping a statute pass could Congress that Consider ture office. pensions. federal of their who have been impeached Clause to reach punitive action short of incarceration. In In of incarceration. short action punitive to reach Clause souri 48. 71 U.S. 333,377 (1866). 51. 50. 458 (1965). 437, U.S. 381 to statute the extend could readily Congress (2011). 102 § U.S.C. 3 term. her or his during office from removed been has who President a from 52. pensions stripping provision a enacted has office. Congress from departure her or his after even impeached President any 47. 46. (1866). 322 320, 277, U.S. 71 qualification of anyone who had been a member of the Communist Party Party Communist the of member had been a who anyone of qualification union. labor of a employee or an officer being from years five the past within retributive, purposes; several serves “[p]unishment however, To the Court, im- society reasons the of One preventative. deterrent—and rehabilitative, harm, future inflicting from them is to keep of crimes convicted those prisons punishment.” any the less imprisonment but make does not that ship, one can readily imagine use of the impeachment remedy to strip pen- to strip remedy impeachment of the use imagine ship, one can readily even office, held who formerly party opposing the of leaders from sions a backdoor such allow to impeachment construe To service. their after years tative measure than one of punishment. After all, the officer’s misconduct in in misconduct officer’s the all, After punishment. one of than measure tative in the trust of office any to hold unfit her him or made has arguably the past in yet rationale that of salience the has rejected Court The Supreme future. case, Attainder of Bill another the Court held that an appropriation act prohibiting any federal agency from from agency federal any prohibiting act appropriation an that held the Court their of because individuals specified three to compensation further paying Attainder. of Bill was a similarly sympathies Communist deprivation of any rights, civil or political, previously enjoyed, may be pun- be may enjoyed, previously or political, civil rights, any of deprivation ishment.” ilarly held that “exclusion from any of the professions or any of the ordinary ordinary the of any or professions the of any from “exclusion that held ilarly as than light other no in regarded be can conduct past for life of avocations conduct.” such for punishment constitution that precluded all who had sympathized with the South from from the South with sympathized had all who precluded that constitution state. the within jobs of a number holding 42699-ckt_95-2 Sheet No. 52 Side A 11/23/2020 10:40:39 A 11/23/2020 52 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 52 Side B 11/23/2020 10:40:39 Smith v. Sperling, 354 U.S. 91, 91, U.S. 354 v. Sperling, Smith [Vol 95:2 [Vol see also see , 9 Wheat. 537, 539 (1824), “[i]t is quite quite is “[i]t (1824), 539 537, , 9 Wheat. ONCLUSION C Mollan v. Torrance ) 10/18/2020) 4:41 PM ELETE D CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT OT N O 1 FINAL (D ACRO M 53 RENT RENT 548 548 K Of course, in a sense, the Bill of Attainder argument proves too much, much, too proves argument of Attainder the Bill a sense, in Of course, The temporal dimension of impeachments may never become a conten- become may never impeachments of dimension The temporal Indeed, examples of this dynamic in our jurisprudence are many. For For many. are jurisprudence in our dynamic this of examples Indeed, To be sure, it may seem discordant that an officer can escape future future escape can officer an that discordant may seem it To be sure, because impeachment is a constitutionally recognized exception to the pro- the to exception recognized constitutionally a is impeachment because rea- to rather—parallel here, argument The of Attainder. Bills on scription reach temporal the greater the that norm—is facto ex post the about soning con- surrounding with tension the greater the authority, impeachment the of power Congress’s that insistence the Framers’ Given provisions. stitutional impeach- of power Congress’s of Attainder, Bills prohibiting by be limited concerns. to contemporaneous be confined should ment tious issue in the future. Yet, focus on the language in the two impeachment impeachment two the in language the on focus Yet, future. the in issue tious strong lends a whole as Constitution the of structure the as on as well clauses occu- those to confined be should impeachment that argument the to support juris- of Congress deprives office that from departure and pying an office, is impeachment of power continuing a for argument deterrence The diction. officer an disqualify and impeach to able be to Congress for and overstated, the in vote a majority by possibly (and question in conduct the after years a of closely Bill too Attainder. resemble Senate) would 53. in stated Marshall Justice Chief As into Bills of Attainder runs counter to the constitutional design. Separating Separating design. constitutional the to counter runs Attainder of Bills into disqualification from future office from removal from current office trans- a into punishment. remedy impeachment the forms clear, that the jurisdiction of the Court depends on the state of things at the time of the action brought, brought, action the of time the at things of state the on depends Court the of jurisdiction the that clear, events”; by subsequent ousted be cannot it vesting, after that and disqualification by resigning before the House can finish debating impeach- debating finish can the House before by resigning disqualification But, convict. to on whether voted has Senate the before certainly and ment a continuous recognizing without can be addressed scenario the Belknap long as that, reason to text the constitutional to violence little does power. It proceedings impeachment formal time the at in office served as an officer process the continue to jurisdiction retain Senate and the House then started, proceedings. the of commencement the at office” “in was officer the because the at diverse are parties the If jurisdiction. diversity consider one example, ju- maintained have long courts federal the is initiated, proceeding the time longer no diversity and moves thereafter parties the of if one even risdiction exists. 93 n.1 (1957) (“jurisdiction, once attached, is not impaired by a party later changing domicile.”). domicile.”). changing later party a by impaired not is attached, once (“jurisdiction, (1957) n.1 93 42699-ckt_95-2 Sheet No. 52 Side B 11/23/2020 10:40:39 B 11/23/2020 52 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 53 Side A 11/23/2020 10:40:39 Just as as Just 54 549 549 ) 10/18/2020) 4:41 PM ELETE D OT N O THE TEMPORAL DIMENSIONSIMPEACHMENT OF 1 FINAL (D , Friends of the Earth v. Laidlaw Envt’l Servs., 528 U.S. 167, 191 (2000); United States States United (2000); 191 167, U.S. 528 Servs., Envt’l Laidlaw v. Earth the of , Friends ACRO M See, e.g. See, RENT RENT 2020] 2020] K On the other hand, if the officer serves out his term or resigns (or is is (or or resigns term his out serves the officer if hand, On the other For another example, an Article III case or controversy can continue continue can controversy case or III an Article example, For another with courts’ jurisdiction over controversies, Congress’s jurisdiction over im- over jurisdiction Congress’s controversies, over jurisdiction courts’ with at the not of impeachment, start formal the at ascertained be can peachment pre- is remedy disqualification the of importance the way, that in end, and served. proceed to jurisdiction no proceedings, commences House the before fired) by criticized be may pardons eleventh-hour Clinton’s President exist. should to an official subject not be but should his party, hurt have may and history be not should he office, leaves Trump President Once inquiry. impeachment impeachment. on bent Congresses future by conduct his for account to called re- by public the to protect remedy impeachment the designed The Framers offender. the to punish not officer, an moving even if developments after initiation of the suit seemingly moot the contro- moot suit the seemingly of initiation after even if developments a res- like parties, the of action voluntary here, relevance greatest Of versy. because controversy the moots rarely context, impeachment the in ignation the harm can berenewed—in this case resumption ofpublic office. 54. 54. v. Or. State Medical Soc’y, 343 U.S. 326, 333 (1952). (1952). 333 326, U.S. 343 Soc’y, Medical State v. Or. 42699-ckt_95-2 Sheet No. 53 Side A 11/23/2020 10:40:39 A 11/23/2020 53 Side Sheet No. 42699-ckt_95-2