Former Judge Michael Luttig and Yale Law Professor Bruce Ackerman make mistakes in contending that a Senate trial on impeachment charges cannot occur after the president leaves office and that Section 3 of the Fourteenth Amendment allows for presidential disbarment from future office by a majority vote. They also fail in declaring the obvious–a criminal indictment and conviction after Trump leaves office could still occur.
Both Luttig and Ackerman contend that impeachment can only occur while the president is in office because the language of Article II, Section Four of the Constitution refers to conviction and removal from office. Nothing in the plain language of the text declares impeachment and a trial must take place while a person is in office; the language merely states that removal from office comes with conviction. Moreover, even if we think the Constitution ought to be interpreted in light of the intent of the framers, nothing in the Convention debates, as reported by James Madison or Max Farrand’s notes on it, suggests the Framers intended impeachment to be limited to while a person was still in office.
Yes, the Framers, including Benjamin Franklin, said the impeachment process was tied to removal from office as was the British tradition, yet there is no clear indication that their intent precluded impeachment and conviction after leaving office. Moreover, given that the Framers were concerned with checking the excesses of executive power as a result of their experiences with King George when America was a British colony, construing the impeachment process to allow for its use currently contemplated in Congress is a reasonable way to adapt it to a threat perhaps not seen in 1787.
History is against Ackerman and Luttig. In 1877 the Senate held an impeachment trial for Secretary of War William Belknap after he resigned from office. The Senate ruled it had the authority to do this. Supreme Court decisions on impeachment have said it generally will not second-guess Congress on its impeachment power and it is unlikely to do so if the Senate holds a trial after Trump leaves office.
Ackerman also contends that the language of the Fourteenth Amendment permits Congress by a majority vote to declare that the president has participated in an insurrection and bar him from future office. First, neither in the plaintext of the Amendment nor history support this argument. The Amendment refers to how Congress can vote to undo the ban, not how to impose it. Supreme Court Chief Justice Salmon Chase riding in circuit ruled in
Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869) this clause is not self-executing, again questioning Ackerman’s assertions. Historians have also argued Section Three is an artifact of the Civil War and Reconstruction, and not applicable beyond the unique issues of those times.
Accepting Ackerman’s argument would set up a scenario where a Congress, disliking a first-term president, could declare an incumbent president ineligible for a second term with a mere majority vote. This procedure would effectively allow Congress to negate the impeachment process and the two-thirds vote necessary to remove a president from office. It is unlikely the Framers of the Fourteenth Amendment intended this.
Finally, while there is debate over whether a sitting president can be charged with a crime, there is no question he can be charged after leaving office and a felony conviction with a determination of guilt is an obvious way to punish and hold presidents accountable for their behavior.
