Good takeaways from a brand new CRS report on impeaching former federal officers:

1) The commentary of the House managers in the Belknap trial, asserting that they had proceeded with the impeachment specifically for the purpose of establishing precedent for this practice.

2) The commentary of John Quincy Adams, in favor of the idea that former federal officers remained subject to impeachment, which also a serves to defuse the emerging argument that such a practice could lead to the impeachment of George Washington for being a slave owner.

Adams’ position was that as a then-former president and then-current Congressman) himself, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”

George Washington, of course, no longer has “the breath of life in [his] body,” which means he’s no longer subject to impeachment.

Not just because Adams says so, but because the Constitution says so, in prohibiting punishment upon conviction beyond removal and disqualification.

Washington, of course, cannot at this point be removed from office. The same will be true of Trump when his trial concludes.

But unlike Washington, Trump IS still be subject to one of only two permissible penalties available following a conviction: that is, disqualification.

Washington is doubly immune from such punishment, at least insofar as running for president is concerned. He’s dead, and couldn’t take office as a result. AND he’s already been twice elected as president, and is therefore ineligible under the 22nd amendment.

But the logical conclusion, to me, is that alongside all the other arguments among the Founders about the purpose of impeachment, if either of JUST TWO applicable penalties still apply to you, then yes, you’re subject to impeachment.

One further note I’d add is this paradox: If a former federal officer is NOT subject to disqualification from future office holding, then it’s not a penalty available against anyone, and you’re logically required to read it out of the Constitution entirely.

Why? Because removal from office is held to be an AUTOMATIC result of conviction in an impeachment trial. No separate vote is needed or ever held. Conviction = removal.

That being the case, conviction instantly transforms the defendant into a FORMER officer, against whom, those who hold that former officials are not subject to impeachment argue, the penalty of future disqualification from office is not available.

Future disqualification, though, is NOT an automatic penalty. It’s optional and additional, and requires as separate vote, which can ONLY take place subsequent to a conviction. What authority would the Senate have to vote on a penalty for someone who hasn’t yet been convicted?

It would be absurd to argue in the case of an impeachment of a CURRENT federal officer, that there can be no resort to a penalty specifically permitted by the Constitution.

But if there’s no way, chronologically speaking, to avoid imposing the penalty of disqualification on anyone BUT a former official, no matter what that person’s status at the outset, then either former officers MUST BE subject to impeachment, OR...

...you have to overrule the Framers themselves, and hold the penalty of disqualification a Constitutional nullity.

Awkward!

Now, can we imagine a procedural dodge to avoid this? Yes, it’s possible. Conceivably, the Senate could at the outset adopt an order of proceeding for a trial that deems disqualification (whichever outcome is preferred) be considered as adopted automatically, upon conviction.

There is no Constitutional prohibition to doing so. And since conviction requires a 2/3 vote, the Senate would obviously also meet the simple majority requirement for imposing the penalty of disqualification as well.

But if the Senate can adopt such an order, then surely it can also adopt an order holding that a former (but still-living) federal officer is subject to impeachment.

So this cure, aimed at undoing the paradox that undermines the objection to impeaching former officers, also ends up holding the door open for permitting that very same type of impeachment.

The remaining question, then, is whether the adoption of such an order in the Senate (whichever way configured) is reviewable by the courts. Of course, ultimately, anything is!

But to the extent that court precedent and judicial cannon is important or binding, there are strong indications that it wouldn’t be. The constitutional prerogative of each house to determine its own rules of proceeding would ordinarily be considered very difficult to overcome.

Oh, I think I forgot to include a link to the new CRS report that kicked this thread off!

I referenced it in an earlier tweet just before this thread, but forgot to attach it here. Constitutioning is hard!

https://crsreports.congress.gov/product/pdf/LSB/LSB10565

Oh, and there was also one thing I wanted to add that WASN’T mentioned in the CRS report, probably because it’s not necessarily dispositive.

It’s sometimes said that Belknap’s acquittal actually does argue for the proposition that former officials aren’t subject to impeachment.

The argument is that 23 of the 25 Senators voting to acquit said they did so because they still believed the Senate had no jurisdiction in the first place (owing to Belknap’s resignation), and that bloc provided the critical mass necessary to render the trial effectively moot.

Of course, minority positions don’t establish precedents. Neither do inferences drawn from after-the-fact statements made by members of voting minorities. But they ARE established by majorities in votes take directly on point, as happened during the trial in the Senate.

Apparently, the Senate vote during the trial on the direct question of whether Senate jurisdiction was proper, given Belknap’s prior resignation, was 37–29 in favor. That’s the precedent that matters. (Because it’s an actual precedent, representing a majority position.)

I just wanted to point out, though, that a minority of 23 Senators insisting after the trial that the Senate had no jurisdiction is not only unpersuasive as precedent, but that 23 < 29.

In other words, the position denying that thee Senate had jurisdiction in the case actually appears to have LOST votes during the course of that trial. (I say it appears to be the case because I’m unsure whether opinions changed, or just attendance.) But it doesn’t look good!

Even if it was really just a matter of attendance, I suppose we might wonder how sincerely the position against jurisdiction was held, given that some significant number of Senators didn’t bother to show up to register their continuing support for it.