President Donald J. Trump’s term officially ended on Wednesday, January 20, 2021 when
President Joe Biden was sworn in.
Whether or not a former president can be impeached has been hotly debated since the article of impeachment was filed against Trump earlier this month. The Constitution does not have any specific language detailing whether this action would be allowed, although the language specifying removal from office as the punishment implies only a sitting President may be impeached.
As we explained in our article “A Senate Trial After Trump Leaves Office Would Be Unconstitutional,” among the most persuasive advocates on the anti-post-service impeachment side is former Fourth Circuit Court of Appeals Judge J. Michael Luttig, who made the case against a Senate trial after Trump leaves office in an op-ed for the Washington Post.
“Once Trump’s term ends on Jan. 20, Congress loses its constitutional authority to continue impeachment proceedings against him—even if the House has already approved articles of impeachment,” Luttig wrote in the Washington Post.
Luttig argued that the Constitution’s impeachment clauses presuppose that impeachment and removal of a president happen while in office.
As an example, he cited Article II, Section 4, which reads, “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.”
He also cited Article I, Section 3, which reads in part: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”
Now, distinguished law professor and lifelong liberal Alan M. Dershowitz has added his voice to those asserting that impeaching private citizen Donald J Trump would be unconstitutional.
In an op-ed for the Wall Street Journal, Prof. Dershowitz wrote:
When the Constitution was written, several states allowed impeachment of former officials. The Framers could easily have included that provision, but they didn’t. They also explicitly chose to prohibit the British practice of trial by legislature—excepting only impeachment—and “bill of attainder,” any punitive legislative act against a specific person. The courts have held that the punishments prohibited by the Bill of Attainder Clause include disqualification from holding office. Moreover, the Constitution requires the chief justice to preside “when the president of the United States is tried.”
We find Prof. Dershowitz’s argument that such an “impeachment” would amount to an unconstitutional Bill of Attainder quite persuasive – indeed it undergirded our analysis as well.
The Framers of the Constitution well-understood the dangers of allowing legislatures to deprive citizens of life, liberty and property arbitrarily and capriciously, because they had the lessons of English history before them.
Jack Lynch, writing for the Colonial Williamsburg Journal observed, even though Bills of Attainder were used in America during the Revolutionary War, no constitutional delegate argued for bills of attainder to be allowed in the new Nation’s Constitution.
Alexander Hamilton agitated against attainder and in January 1784 railed at “the doctrine of disqualification, disfranchisement and banishment by acts of legislature. The dangerous consequences of this power are manifest.” He said that it could lead to “an aristocracy or an oligarchy,” in which “no man can be safe, nor know when he may be the innocent victim of a prevailing faction.”
When the Constitutional Convention of 1787 took up the question, all agreed attainder had to go, noted Mr. Lynch. Article I, Section 9, Clause 3, is explicit: “No Bill of Attainder or ex post facto Law shall be passed.” Section 10 expands the scope of the prohibition to state governments.
While there was a divided vote on the prohibition against ex post facto laws, the clause on attainder, sailed through nemine contradicente-—with no objection. These clauses appear in the body of Constitution, not in the appended Bill of Rights. The need of a fundamental safeguard against bills of attainder was plainer to the delegates than the bans on self-incrimination and illegal search and seizure forced on them by the states during ratification.
It is our view, a view well-founded in history and constitutional law, that Congress may impeach President Donald Trump, but when he leaves office, he becomes Citizen Donald Trump, and Congress cannot through its legislative power, deprive Citizen Donald Trump of his rights or property, including the right to run for and hold public office. Call the toll-free Capitol Switchboard (1-866-220-0044), tell Republican Senators that there is no jurisdiction for the Senate to try a citizen of the United States and that they must vote against the continued persecution of Donald Trump.
incitement of insurrection
ex post facto laws
bills of attainder