If nothing else, the impeachment proceedings have encouraged us to think about some interesting hypotheticals. Here are a few:
1. Can former Presidents be impeached? Leading originalist-oriented blogger Keith Whittington says yes. But I am not so sure. The Constitution does not answer the question directly. But it seems to contemplate a process focused on current officeholders. Article II, Section 4 (we all now know) says that “The President, Vice President and all civil officers of the United States shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Article I, Section 3 says “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…” Nothing in the text refers directly to impeachment of former officers. (Professor Whittingtion notes that some state constitutions did refer to impeaching former officers, but the Constitution’s failure to adopt that langauge seems to cut against, rther than favor, the existence of the power. True, one could say that an impeachment could be used just to disqualify a former officeholder from future office. But if so, why would impeachment be limited to former officeholders? Could a person be preemptively impeached before becoming an officeholder? Professor Whittington indicates that the House could not impeach a private citizen. I agree that seems odd, but if impeachment isn’t limited to current officeholders, I don’t see any other tenable textual limit. I think the implication of the text is that the process is to remove current officeholders.
2. Can Presidents be impeached more than once? I think clearly yes. Nothing in the Constitution suggests otherwise, so it’s up to the House to decide. And just because a President is acquitted of only allegation should not insulate him from other claims of wrongdoing. Probably a President could even be impeached more than once for the same conduct, if for example new evidence came to light, since double jeopardy protection only applies to criminal charges.
3. Can the House approve articles of impeachment and not deliver them to the Senate? (This one is suddenly quite relevant). I say yes (Noah Feldman suggests otherwise here). The Constitution says nothing on the matter (as in #2) other than saying that the House has sole power of impeachment, so it’s up to the House. The House could decide, for example, that sending the articles to the Senate is futile.
4. Can the Senate hold a trial if the House approves articles of impeachment but does not deliver them? Initially I thought the answer would be yes, on the ground that the Senate has sole power to try impeachments. But I am persuaded by Andrew Hyman’s argument that impeachment does not really happen until the House delivers its accusations to the Senate. If that’s right, then there can be no trial before delivery, because there is no impeachment (and so nothing to try) before delivery. (Josh Blackman argues otherwise here, but he does not address Andrew’s point).
5. Can the Senate summarily dismiss an impeachment? A number of commentators argue no, because the Constitution says that the Senate has power to “try” impeachments, so there must be an actual trial. But reading the Constitution closely shows no obligation on the Senate’s part to do anything. The Senate has power to try impeachments, but no duty to try them. I agree that if the Senate wants to remove someone from office, it must hold a trial (leaving aside what exactly that requires). But if the Senate does not want to remove someone from office, it doesn’t need to do anything. The situation is parallel to the House sending the Senate a bill on the hope that the Senate will approve it, or the President nominating someone in hopes of obtaining the Senate’s advice and consent. The existence of a power does not imply the existence of a duty. (Josh Blackman agrees here, expressly citing the Merrick Garland nomination).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.