Robbins: Can Trump be impeached now that he is out of office?
As Yogi Berra surely would have observed, “It’s déjà vu all over again.”
Didn’t we just do this a couple of years ago? Only this time, the chess pieces have been moved around the Congressional board a bit.
The first time Trump was impeached, the Senate majority was controlled by the Republicans, Mitch McConnell was the Majority Leader and Trump was the sitting president. The two Articles of Impeachment with which he was charged were: abuse of power and obstruction of justice, both of which flowed from his dealings with Ukrainian president Volodymyr Zelensky.
After a mockery of a trial in the Senate where no witnesses were allowed, Trump was acquitted, with only one exception, along strict party lines. Only Utah Republican Sen. Mitt Romney crossed party lines. As it takes two-thirds of the senators sitting in judgment of impeachment, the president was acquitted. By the by, Trump’s bloviating to the contrary, “acquittal” is not the equivalent of “exoneration” — complete or otherwise — in this or any other world.
Now, Trump, having failed to win reelection is president past participle. And he has the rare — in fact, unique — distinction to be the first and only president in this nation’s 245-year history, to face impeachment twice. He is also the one and only president to face impeachment after hieing off to retirement. The question that this raises is: Can a former president — one who is no longer in office — be nonetheless impeached?
I’ll leave extrapolation of the logic as to why the answer must be yes to another time and perhaps another column. In short, logic dictates — and most Constitutional scholars agree — that the answer must be in the affirmative. If not, then a president could commit all sorts of mayhem while in office, resign as the summons for impeachment knocks on his door and thereby escape accountability. Or else a sitting president could throw the Constitution under the bus his last weeks ensconced in the White House and rely on the clock to count down prior to a reckoning before the Senate. This, clearly, the framers did not intend.
The point of this column is, however, precedent. What legal grounds is the right to impeach a president after he has left office founded in the law?
One last nasty bit before we get there. This time Trump is charged with a single article of impeachment stemming from the rather serious matter of him trying to overturn the election results wherein he lost reelection to Joe Biden. His pique prompted Trump to call Georgia Secretary of State Brad Raffensperger and pressure him to overturn that state’s election results. It led too, the charge asserts, to Trump inciting his supporters to storm the U.S. Capitol. What Trump is charged with this time — and will stand trial before a Democrat-controlled Senate — is “incitement of insurrection.”
Let’s first start with Warren Hastings.
Hastings was the first governor-general of Bengal. If you know your history and geography, Bengal is not, and never was, part of the ol’ U.S. of A. In fact, Bengal was part of the territorial overreach of Great Britain. In the late 18th Century — a time when America was just getting its feet under it as a new nation, Hastings was charged with official misconduct, mismanagement and personal corruption to be precise. Under British law, Hastings was impeached. The impeachment trial dragged on for an astounding seven years.
Hastings left office in 1784 but his impeachment did not take place until 1787, more than two years after he left office and the verdict — ultimately one of acquittal — was not rendered until 1795.
To much fanfare, the Hastings impeachment played out during the Constitutional Convention across the “pond” in Philadelphia. The framers paid close attention. Not only was “Hastings” shorthand for the framers in considering what conduct should give rise in the new nation for impeachable offenses but it also became the model for impeachment after an official — the president included — left office.
If the framers had wanted impeachment only during an official’s term — especially as the bright light of the Hastings trial was then burning — they would have said so and the Constitution they were then crafting would have been constructed with such bumpers.
Then there was the Belknap case.
William Worth Belknap was President Ulysses S. Grant’s Secretary of War. In March of 1976, he was impeached for his role in the “trader post scandal,” a kickback scheme involving military forts on the Western frontier.
In February 1876, rumors started flying that Belknap was receiving illicit profits from Indian tradership agreements. An investigation was swiftly begun. Late that month, Belknap and his counsel went before the investigative committee, but Belknap declined to testify. On the morning of March 2, Treasury Secretary Benjamin Bristow told President Grant of Belknap’s impending impeachment. Shortly thereafter, Secretary Belknap arrived at the White House, was extremely anxious, wept, and confessed his misdeeds to the president. Belknap handed Grant a one-sentence resignation letter which Grant accepted.
But … oops… Belknap was impeached anyway.
The committee investigating Belknap’s conduct unanimously passed resolutions to impeach him and drew up five articles of impeachment that were sent to the Senate. Belknap, by then a private citizen, was impeached by a unanimous vote of the House of Representatives. Speaker of the House Michael C. Kerr wrote to the Senate that Belknap resigned “with intent to evade the proceedings of impeachment against him.” Belknap’s case was constitutionally unprecedented and would thereafter serve as reference for nine other civilian officials’ resignations before trial, including that of President Richard Nixon.
In April, 1876, Belknap was tried by the Senate. For several weeks senators argued over whether the Senate had jurisdiction to put Belknap on trial since he had already resigned office in March. Belknap’s defense managers argued that the Senate had no jurisdiction; the Senate ruled by a vote of 37–29 that it did.
Although he was ultimately acquitted, the Belknap case has since stood for the proposition that an official may in fact be impeached and tried even after he has left office.
But what about the president? Hastings was a Brit and Belknap was the secretary of war, not, after all, the president. The answer lies in the Constitution itself. Article II, Section 4 provides 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.” In other words, what’s good for the goose of “all civil officers” is good for the gander of the president.
Can a president be impeached after he has left office?
The bread crumb trail of history and precedent says yes.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.