How I Think Originalists Should Approach Q of Post-Tenure Impeachment

1. Start with the Constitutional text on impeachment, using the vocab & grammar standard in 1787. Does it establish a clear rule on whether an official can be impeached after the individual has left office? /1

I don't think anyone can say that Constitution's text establishes a clear rule about post-tenure impeachment. So, next.

2. Does the existing text provide definitive clues that resolve the issue? Textual clues are a mixed bag./2

Point in favor: Consequences of impeachment carry on post-tenure, suggesting it serves a purpose (and ought to have effect) beyond removal.
Point against: Art. II, sec. 4, states that civil officers shall be removed from office, suggesting removal is primary concern. Next.../3

3. Are there structural clues that resolve the issue, specifically considering the types of Constitutional power involved? In the absence of clear standalone text, can we say that resolving the issue one way or another will undermine or eviscerate separation of powers? /4

Post-tenure impeachment cannot categorically eliminate executive power. Nor does a prohibition on post-tenure impeachment undermine Congress's authority. So no clear answer here. /5

After those three questions are several Qs that I think have to be weighed together.

4a. Were there contemporary English and State practices (or common law principles) that would have informed how citizens and Framers perceived the Constitution's text? /6

This Q is, in some ways, a fiction, b/c it assumes citizens as a whole were aware of contemporary English and State practices and thought they would have been incorporated. Certainly not all did. But some did, including many elected reps who framed and ratified Constitution. /7

This is where the analysis gets the messiest b/c the number of sources you can consult are the widest. But the weight of evidence, I believe, supports concluding post-tenure action was possible. /8

The English practice permitted impeachment of officials after office (& even permitted impeachment of private individuals.) Some states followed that, including impeachment of private citizens. (eg NC) Other made explicitly clear officials could be impeached post-tenure (PA). /9

Some states had no impeachment of the executive. (eg NJ) Some required impeachment AFTER the official left office. (eg VA) But none as far as I am aware explicitly req'd it to be done during their tenure in office. /10

If you were an impeachment buff in 1786, you would not be surprised that impeachment occurred after office. Indeed, it is only the opposite - impeachment required while in office - that might make you think, "That's different from what I've seen so far." /11

So I think that evidence tends heavily in favor of allowing post-tenure actions, but it is by no means concrete. /12

Next factor an originalist should consider: Were there contemporary debates or public discussion that would have led citizens or their reps to believe they were deviating from typical practice? /13

I admittedly have not had enough time to look at this issue. I'll highlight the most salient piece of evidence that possibly (but not definitively) goes against my point: Madison's description of impeachment in Federalist No. 39. /14

In Fed No. 39, Madison describes the difference between state and federal practices for a chief executive. His description of Presidential impeachments, were it a constitutional clause standing alone, would lead me to believe the President could not be impeached after office./15

That description is: "The President of the United States is impeachable at any time during his continuance in office." /16

The reason I don't think it definitively goes against my conclusion is that Madison is contrasting federal impeachment against state impeachment to make clear that a President can be impeached in office, an issue on which state practice was split. /17

He doesn't have to contrast against state practices that forbids post-tenure impeachment because, again, as far as I am aware, there were none. (But if someone knows of a state that had one, I'd love to be corrected!) /18

(I include the Fed No 39 bit not because I think it really goes against me, but because I think it has the best chance of going against my argument, and I think it's good to be complete about this.) /19

The next factor an originalist should consider:

4c: Whether subsequent federal practice over the last 200+ years goes one way or another. (This is @WilliamBaude's liquidation theory of originalism.) /20

The House impeached an individual after he left office (Belknap). Some dissented or refused to convict on the grounds that he had left office, but the majority went against him. Not a long-standing practice (like eg A3 life tenure) but a point in favor of post-tenure action. /21

If an originalist gets through 4a-c and determines there is a robust amount of evidence going on way, I think they should fashion a rule in line with that evidence.

The weaker the evidence is, the narrower I think the rule should be to allow development./22

Even if you think the evidence is only weakly in favor of post-tenure actions, then I think you can fashion a narrow: If impeachment proceedings against an official begin while the official is in office, the official's leaving office does not foreclose impeachment & conviction/23

And that's why I think it's constitutional (just like @mattgaetz!) to impeach and convict President Trump despite the fact that he's left office./end

PS There's probably some typos in here, but I had to hash this out on my lunch break, and I don't have time to edit!

Addendum: I didn't address stare decisis because there is 0 precedent on this issue. If a judge were asking the question, that should be the first place the judge should look.