The following is a guest post from Chicago-Kent law prof (and former dean) Harold Krent:
Many have derided academics for writing only for each other. But, others of us also hope that, in some small way, our research and writing can make a difference in society as a whole. For law professors, that impact can arise from influencing the arguments of attorneys, the opinions of judges, and the direction of law reform.
Thus, I felt some gratitude when friends alerted me on February 8th that the Trump impeachment team had cited my prior work with some detail in its brief defending the former President. And, unlike with some of the other academics they cited, the brief did not misquote me. Although not misquoted, the brief failed to disclose that my prior writing concludes that the Senate in these circumstances retains the power to convict the former President.
To be sure, I previously wrote, in contrast to the prevailing wisdom, that Congress’s impeachment power was not continuous. The language in the Constitution seems to limit impeachment to those holding an “office;” the Framers consciously cut back on the scope of the impeachment power used by the British Parliament; and surrounding constitutional provisions reflect a deep concern over preventing Congress from punishing anyone not currently holding an office. The Bill of Attainder Clause in particular prevents Congress from in any way punishing individuals. That prohibition, in other words, must be reconciled with the impeachment power. Although the constitutional language is far from dispositive and the record of why the language was chosen is sparse, I concluded that impeachments could only be directed at those officers holding office.
Indeed, all watching the debates will readily discern that something is different about this second impeachment in that Chief Justice Roberts has declined to preside over the trial, signaling that his duties are only triggered when a President is in office. And, although not relied upon by the Trump impeachment team, Congress itself in the 1958 Former Presidents Act vested pensions and perquisites in all Presidents “whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America.“ Congress in so doing evidently intended to withhold pensions only from those who are disqualified before serving out their term. Congress apparently did not contemplate that Presidents could be impeached after “serving out their term.” Thus, reading the Constitution to impose a temporal limit on Congress’s impeachment power as the Trump team argued is far from frivolous.
Nonetheless, I concluded previously that the Senate retained its power to convict when the impeachment process commenced before the President leaves office. The House Managers’ concern that Congress must have some way to react to a President who goes off the rails in the final weeks of office is alleviated if the power to impeach continues as long as it starts when the President still is “in office.” In the two historical examples in which the Senate considered and voted on whether it retained jurisdiction to convict an officer who no longer served, the impeachment process had already started, in one case a Senator accused of conspiring with the British was impeached by the House and expelled by the Senate before the Senate proceeded to consider whether to convict, and in the other a Secretary of War had resigned in the face of an impeachment inquiry into his fraudulent activities. Indeed, it is not uncommon for tribunals to retain jurisdiction over parties despite subsequent events – here, removal from office – that, had they arisen previously, would have deprived the Tribunal of jurisdiction. To provide one example, Chief Justice Marshall stated in Mollan v. Torrance, 9 Wheat. 537, 539 (1824), that “[i]t is quite clear, that the jurisdiction of the Court depends on the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.” Thus, concluding that the Senate retains the power to convict and remove an officer as long as the House triggered the impeachment process while the officer still served in office reflects historical practice, preserves in Congress the power to continue what it started in response to a runaway President, and at the same time, avoids the otherwise jarring result that Congress could exercise a vindictive power to impeach a President twenty years after leaving office. In short, although the impeachment process should have temporal limits, Congress should be able to finish what it started, and the officer’s resignation, expulsion, or expiration of his or her term should not defeat its jurisdiction.
Some legal academics started their careers as litigators. And, with my litigation cap on, the fact that the Trump brief cited so extensively from academics who embrace the power of the Senate to continue the trial is telling. Although the Impeachment process is not about winning legal arguments, the constitutional language, the historical examples, and consideration of the constitutional structure all support the House Managers’ position. Nonetheless, it was still nice to be noticed.