The Constitutional Case for the Impeachability of Former Federal

The Constitutional Case for the Impeachability of Former Federal

Michigan State University College of Law Digital Commons at Michigan State University College of Law Faculty Publications 1-1-2001 The Constitution...

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Michigan State University College of Law

Digital Commons at Michigan State University College of Law Faculty Publications


The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment Brian C. Kalt Michigan State University College of Law, [email protected]

Follow this and additional works at: Part of the Constitutional Law Commons, Jurisprudence Commons, Legal History, Theory and Process Commons, and the Other Law Commons Recommended Citation Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13 (2001-2002).

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I. INTRODUCTION ........................................................................... 16 II. IMPEACHMEr-..'T BASICS AND THE SIMPLE ARCL':-'IE:'-."TS FOR A:\D AGAINST LATE IMPEACHMEl\'T ........................................... 18 III. HISTORY ................................................................................... 22

A. English Impeachment ...................................................... 22 B. Pre-Constitutional A merUan Impead/11Ien / ....................... 27 1. Colonial and State Cases ........................................ 27 2. State Constitutions ................................................. 29 3. The Articles of Confederation .............................. 39 C. The Framers and the Ratifiers .......................................... 40 1. The Convention ..................................................... 40 a. Initial Proposals .................................................. 41 b. Removing the President ....................................... -13 c. The Hastings Pamdigm ....................................... -I6 d. Late Adjustmen ts ................................................ -18 e. Conclusion .......................................................... 49 2. Ratification .......................................................... '" 49 D. The Argument from Histor)' ............................................. 54 IV. TEXT ................... '" ................................................................... 54 A. EVlff)'thing but Article lJ, Section 4 ................................... 55 B. Article II, Section 4 .......................................................... 58 1. The Over-Literal Reading: Helpful but \"'rong .... 58

* Assistant Professor of Law. Michigan St.lIe LTni\'ersit\'·Detroit Colkge of 1..1\\,; A.B.. University of Michigan. 1994;].0 .• Yale L"l\\' School. 1997. 'l1lanks 10 ~Ii("had Cerh.lrdt for his helpful comments and to Jorge SOIlSS for his ,uperhll' inc-c.I\(· ,lIId helpful criticism. Special thanks to Chuck Ten Brink. Carol Parker and the r",,[ of the outstanding library staff at MSU-DCL.

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2. The £xpressio Unius Reading: Four Possible Interpretations ..................................................... () I

3. Conclusion .............................................................. liB V. STRUCTURE ................................................................................ ()B A. The Deterrent E-JJect oj Impeachment... .............................. 69

B. Removal, Disqualification, and iVIootness ........................



The Indistinguishable Stages oj Impeachment ................... 75

D. Pardons, Presidential Removal, and the ImjJf(lchment (l,\ Inquest .......................................................................... 7B E. 17le Four Interpretations .................................................. BO VI. PRECEDENT ............................................................................... B


Cases ........................................................ I 15

b. Hill .. ................................................................ c. I·prguson ........................................................... d. Smith ........... ..................................................... VII. THE COMMEXTARY................................................................ A. Rawle and StoT)' ............................................................ B. Recent Commentary ....................................................... VIII. PRACTICAL COl':SIDERATIO:\'S .............................................. A. Disqualification ............................................................ B. Punishment Beyond Disqualification ............................. C. Precedent .......................................................................

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D. Timing ......................................................................... 130

E. Congress Defends Its TU1f. ........................... .................. 131

F. Quick and Eas)' ............................................................. 132 G. Potential Abuse ............................................................. 133 H. Conclusion................................................................... 134 IX. CONCLUSION .......................................................................... 134

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Can federal officials be impeached even after they have left office? Or do the potential remedies of impeachment-removal, disqualification, and possibly others-disappear when an official leaves office? To put these questions in perspective, consider the following hypotheticals: 1. The Republican Party wins a series of stunning electoral victories and obtains the presidency and a two-thirds majority in both houses. The Party decides to deliver the COllI' til' Knlel' and impeach all of the popular leaders of the oppositionmany of whom have just been narrowly voted ou t of office-i n order to prevent them from fielding viable candidates in the next presidential election.' 2. A federal judge is about to be impeached for gross incompetence. Before the House can vote on the case, however, the judge resigns and flees the country. The I louse sees no practical reason to pursue the judge, but is wary of setting a precedent that impeachment Illay be stopped in its 2 tracks on the whim of the offender. 3. The Secretary of Defense is discovered to haV(' been involved in a complicated bribery scheme during his earlier service in another federal post. He finds out that the I louse is going to impeach him, but he resigns hours be/exe the vote and argues that he is now unimpeachable. The Iiouse wishes to proceed in order to disqualify him from federal office and take away his pension, to protect its jurisdiction, and to set a precedent that the Secretary's nuanced conduct in the bribery scandal constitutes an impeachable offense. I I. Thi~ is an exaggerated ve...,ion of the attempt by Jeffer'oniall ReplIhli( .,," .tllt·, the IHOO elections to remove holdover Federalist jlldges via illlpe.KhllIent. SI'I' EMil' FIELD \',\\; TASSEL & PAl'L FI;\;KEL~IA\;, I\II'b\( IIAIILF O~H,:-'''~S 10. !Jl·!l2 (I!I(I!I) (describing .Iefferwnian efforts); lee (/LIO P~TER CIIARLES 1-l0FF~,R & :--1.E.l1. III II. hIPEAClI\IE\;T I;\; A~fERICA. I 635-IH05. at 151 (I!lH4) (describing impe.l(hmellt 01 Repllblican William Blollnt a, "opening gambit" in Federalist pl.1I1 to d,\lI".llily .lI1d tilll' "ward off potential [Repllblican J candidate,"); 11'1' grnemll)' D,md 1'. ClIrlle. Thl' Comllll/tlOn ill Congrrss: nIl' Most Ellllmlgrmi Brallch. /80/-/805.:n WM,~ F(}R~~I L. IHv 21!1 (l99H) (describingJeffersonian a~ault Oil Federalist jlldgl·~. partklll.lrly tIll ollKh ,"" of impeachment), 2, Thi, is an adaptation of the com mOil ~itllatioll 01 I<-dl',.11 Jll(lgI" ,e"glllllg to ,I\oid impeachment and the tension betwel'lI the Iiollse', rcllll'tall((' to PIII"'"(' ollelld,'" alld it~ COllcel'1I for presen;ng Its power,. Sel' Infra Part VI.A.7. 3. This i, an adaptation of the case of Secretary of War Wilham Bdkn.lp. III 'h,' actual ca.,e. however, Belknap's condu(( was not particlliarly IIl1allced; it did lIot ')( (III III

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4. In the middle of the President's term, the Secretmy of State is caught in a politically charged sting operation. The House impeaches the Secretary, and it is obvious that the Senate will convict. To help salvage the Secretary's political career (bigger comebacks have happened), the President fires him minutes before the Senate is to take its vote but denounces the "overzealous" Congress and appoints the exSecretary to be a personal advisor and emissary on foreign policy issues. The ex-Secretary argues that he cannot be convicted because he is no longer in office.'

All of these are examples of potential "late impeachments," an attempt by Congress to impeach and U)' a federal official after he has left office. There is no simple constitutional answer as to whether, in any or all of these scenarios, Congress can pursue a late impeachment. The text of the Constitution says nothing explicit about the timing of impeachment, neither expressly authorizing late impeachment nor ruling it out. Preconstitutional impeachment practices in England and America included late impeachment but are of uncertain applicability. The debates surrounding the framing and ratification of the Constitution provide fodder for debate but little clarification. Precedent from actual late impeachment cases is favorable to late impeachment but is ambiguous. Scholarly opinion, too, is generally favorable but divided. In short, tllOugh it has spurred heated and detailed debate, the question of late impeachability is close and unsettled. Regardless of how close the question of late impeachment is, however, there can be only one answer.~· Eitller Congress can pursue late impeachments, or it cannot. The premise of tllis article is that Congress can pursue late impeachments. based on analysis of the text, structure, historical underpinnings, and precedent of the Constitution's impeachment provisions. b

a different federal office; and his pension was nO! an issue in h~ impl·.tchuIC.-nt 10011. .~~ infra Part VIA5 (discussing Belknap case) and Pan \,II.B. (discussing Pl'll>lOlll.>Mle). 4. This is a very loose adaptation of the case of Te:GlS Go't'rnur Jallll':!> Fl'rgll.>{)n. who resigned just before the judgment against him "~lS pronuunn'd and 1m pUllL,hml'nt approved. He was disqualified from fUlllre office, but his "ife \'~l.> ~uun dl'Cll'd gml'rnOf based in pan on her promise that she would follow her hll.>band\ -ad\lCl'. - .0;...- "'1m Part VI.B.2.c. 5. One can argue that late impeachment is constillltiunal III {l·n.un lunHl'd C;L~. I reject that argument. See infra Pan V.e. 6. This typology of constitutional argument is taken from PIIIIJI' BOIIIII n. CONSTITUTIONAL FATE: THEORY OF THE CO:'\SnTlIIO:'\ (I9S2). Bubbll! l'llllllll'r.lI .... Ihl' different categories of constitutional illlerprt·tation: Ihl' fOllr Il.>l'd hl'fl' (-ll'XIII.II:

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vVhether late impeachment should be pursued is a wholly separate question, and one that is easier to answer.7 In a pragmatic sense, Congress will rarely have a good reason to pursue late impeachment. Then again, it rarely has cause to pursue any impeachment. The impeachment power provides a significant incentive for federal officials to behave properly, and so the practical importance of late impeachment lies just as much in the offenses it prevents as in the ones it redresses. In any case, if the Senate had ever been confronted with an ex-officer clearly worth convicting, it likely would have convicted and settled the question. It is possible, if not particularly common, for Congress to possess power that it chooses not to use. Late impeachment may prove practical and worthwhile ill the future if the offense is heinous enough, if the stakes are raised high enough, or if the offender is situated just so. Even ir it is not worthwhile, there may be enough members of Congress who believe othenvise to force the issue. Because such a case would be highly charged, both politically and emotionally, it is better to hold this constitutional debate now, with cooler heads and purely hypothetical defendants." II. IMPEACHMENT BASICS AND THE SIMPl.E ARClfMENTS FOR AND AGAINST LATE IMPEACHMENT

The Constitution gives the House of Representatives the sok power to impeach9 and the Senate the sole power to tl)' III impeachments, with a two-thirds majority required to convicL "historical," "structural," and "doctrinal") and "prudential" interpletatlon. ftI . •It 7. 1111' article does not make a prudential argument becallse .uch arglilnent~ are ".1( tII.lted hv the political and economic circumstances surrounding the derision" by the I'rlldellll.lh,t decision-maker. Jd. at 61. Because this article IS an elTort to argile ill the ah'II.11 t. thcle are no applicable "circllmstances" to discllss. Srr mira note R. SOIllI" 11I.1( til .11 col1siderations are discllssed in Part VIII. infra. Bobbitt suggests, somewhat tentatively. adding a ,ixth 1II0de 10 Ihe 1.llIon: III(" "ethical" argument that derives decisions from thl" ethos 01 Ihe Alllenc.1II I'ohlv .\,.,. BOBBl'lr, 5Ilfrra, at 93-94. Given the uncertain ,tatlls of thi, mode in thl' callOll, II " 1101 trealed separately here. 7. See mfra Part VIII. 8. It is worth stating near the outset that thi. artil-Ie is 1101 aholll illlPI".llllIlIg .1111' particular ex-ofIicial. I have argued elsewhere thaI a lall" impeaclllnl"l1t 01 1'1(·"dl'lIl Clinton is possible, but those argumenL, are now largdy 1II00t. and .•lmW.IV. WI'II" primarily concerned with abstract constitutional principles. Srr Hn.11I Kall." ,\1/(/ \/fI\ OUI!": The Constitlltional Case for Post-Presidm/Ull Im/)f(/rhmml. '/l'RIS I (Mar. I. \!OO I ). fI/ http://jllri,; Bri.1II Kall, And .\ta), Out: ""/Jmrhmrllt Should /Villain on the TablR for Clmton, NAT'L Pas r (ToronlO) . ./lIne 9. 1999. at A H. 9. See U.S. CaNST. art. I, ~ 2, d. 5. 10. See Id. !i 3, d. 6.

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When the President is on trial in the Senate, the Chief Justice presides. II The Judgment" (i.e., sentence) in an impeachment case cannot "extend further than to remo\'al from Office, and disqualification to hold and enjoy any Office of honor, Tmst, or Profit under the United States."I~ The President cannot use his pardon power to prevent, preempt, or undo an impeachment:' but once impeached and convicted, a person IS stiU subject to the regular criminal process." The most important constitutional clause conceming late impeachability is Article II, Section 4, which states: ~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. ,,15 Those who believe that late impeachment is unconstitutional 16 rely very heavily upon this clause. First of aU, they say the clause provides for impeaching only" [t] he President, Vice President, and all civil officers." "Officer" means "officer," not "ex-officer."I~ 11. 12.


[d. cl. 7. In my Q\m view, this disqualification dOl" nol .IIT(·n lIlt" com1n', abilll\ to sen'e in Congress, because the COllstiltllion use" Ih(' I('nn "oOin'" C'xdll,I\t'h or sening in Congress. Su, t'.g., id. § 6, d. 2 ("(Njo Pen.ou holding ;IIIV oOiet' uudC'r lilt' United States, shall be a Member of eilher House: (of CougH"'-') duriug hI> (;ollllnu;lIIl:C' in Office."); id. art. II, § 1, cl. 2 ("[Njo Senator or Rl·pn-sl·lI\:lIi\·e. or I't'n.t>ll huldillg all Office of Trust or Profit under the: Uuile:d Slates. shall bt' appoill\t'd au Elt'nuc.") (emphasis added). But others are not so sure-Judge Alet'e lIasling" \\,1> illlpC'adlC'd. convicted, but not disqualified; wheu he was ell-cte:d (() Cougn.,.,.. "'IIUt' 'pt'cul:lIt'd Ihal he might be disqualified relroaclively. Sri' MICIIAEL J. GERII ·\RD I. 'I'm. Fl m.R.\L IMPEACHMENT PROCESS 60-61 (2d ed. 2000). 13. See U.S. CONST. art. II, § 2, d. I; Briau C. Kah. :-':Olt'. P,mio" .\Ir?: nit Constitutional Case Against Presidmtial SrlfPardoll$. \06 Y\Lt. LJ. 779. 7!l:Hl6 (1996) (explaining broad interprelation ofimpeaclunent excC'plion 10 pardon pu\\·C'r). 14. See U.S. CONST. art. I, § 3, d. 7. 15. [d. at art. II, § 4. 16. Those who have written againsl lale impeachabilil\' IllcIlIti(' jll>l«,(' jo.... ph SlUr.. see infra Part VILA; a significalll minorit\' in lhl' Sl'nall". Vt' /II/m I';Jn \'1..\; ;lIId commentators, see El.E.\.'10RE BL·SIl:>:ElJ.. CRI~IF.S. FOIJJt_'>. A~ll ~IISH)RIl 'L'>: 'I'm FEDERAL IMPEACHMEl'.'T TRL\LS 16 (1992); Robl'rt C. S\('III·. :'I:OIt'. f),ji"IIIg IIrg" Cmnn and Misdemeanors: A Coli for Start' Drcisis. 15 J.1.. 8: POI .. :~09. :~:IH (1999) (1IIl"lIl1olllllg "rule" that "fonner federal officers (canjnol be impl"acht'd"); jOI'gC' E. SOl""', lmfxadr Why Not [mpmdr OJ.?, jL'Rlsr (~Iar. I. 20011. III Clinton? HolTer and HlIlI "'t'1I1 \0 ;l\SlIlIIC' Ih;1I bIt' impeachment is inappropriate as well. Srr HOFFER 8: III U .• wpm nolC' I .•11 257 (regarding Blount case as federal precede 111 againsl lalt' illlp('achabilll\'). 17. Throughout this article, tilt' tenn "chil officl'rs" will bl' 11S('d ;l, ;1 "lIch·aIl including not just federal chil oOicers blll also 1Ill' Pn-sidl'lI\ alld \'in' I'r<">l(ll'n\. Technically this may be incorrect. as tht' Constillllion disllngtll,hl'S Ih(' I'r<">ldC'1I\ amI Vice President from chil officers. Article II. § -1 dol'S 1101 S:I\ "all otlrrr CJ\,I uflin·r.: .1£\C'r all. The distinction appears 10 be Ihal tht' Prt'sidenl and \'in' I'r<">ldt'1I\ ;Ut' C'lt"nC'd. ,u

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As one lawyer, speaking in the midst of an actual late impeachment, put it: "A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together he would be considered a very unpromising lad,"IH The second part of the classic argument against late impeachment is based on punishment. There is no way to "remove []" an ex-officer "from Office" as these critics say Article II, Section 4 requires, I" If Article II, Section 4 applies to exofficers, they contend, then its removal provision makes no sense-not a conclusion about the Constitution and it<; Framers that one should make lightly,20 In a broader sense, some critics have argued, impeachment is not about punishing individuals anyway; it is about protecting the office from bad occupants,ll Under this theory, once an offender is out of orficc-by whatever means-no proper purpose for impeachment 22 remaIns, The third part of the argument, a reductio (ul absurdllm logically derived from the first two, is that any interpretation or Article II, Section 4 permitting late impeachment must permit any impeachment. To these critics, the only interpretive choices are either limiting impeachment to sitting officeholders or U.S. C01';51 , art, II,!-i I, c1. I, while civil officers of the lfnited State, art' cOlllllli'SIOII('d hy the President, see id. !-i 3. On the other hand, the Constitution refns repeatedly to the President and Vice President as holding "office." See, e,g.. /(/. at art. I. !:i :{, rI. :,: /(1.•11 .\11 II, !-i I, c1. 1,5,8; id. at amend. XII. 18. CO:'-ll:RES510)';AL RECORD CO)';TAI)';I)';(; TIlE PROCFFI>I:'-I(;~ OF I lIE S~,~ \ I F SI rI I~(, FOR TIlE TRIAL OF WILLlA~1 W. BELK1';AI', LHF SECRnARY OF WAR 71 «;oV('lnlll('1I1 Printing Office, Washington 1876) [hereinafter BEI.K~AP TRIALJ (.11 gUlllell1 01 dekll'e counsel); acrord Souss, supra note 16 ("The word 'Pre,ident' appears 14 oth('1 111111" III Article II, and in evel]' sillgle case it is undi'puted Ihat it refers to the per,oll S('I"Vlllg ." President, 1I0t to a former Presidellt:): BEI.K),;,\I'TRL\I., IIlpm, at 1:~2 (oplllioll of S('II.llol Boutwell); if. it!. at 40 (recording ab51lrt!um suggesllon by del('II,e (o\lmd III 1.lle impeachment case that trials of former presidellt.' would have to he pn',i(kd O\"{'I hI chiefjustices). 19, This leaves open the question of what to do with '0111('011(' who h.I' lelt Oil(' federal office but who is currently holding another. Should ,uch a pel\OII-who " .111 officer, after all-be susceptible to illlpeachment for offen,eo; cOlllnlltted III hi, »1('\'1011' office? See iI/Ira Part V.E. (discllssing different 1Il0deb 01 illl»eachahility .lIId II ('.11111('111 01 offenses in former offices). 20. See. e.g., iI/Ira note 355 and accompanying t('xt (Iklkn.lp (."('): III/III 11',1 accompanying note 499 Ullstice StOI]'); Souss, wpm note Iti. 21. See, e.g., Jonathan Tllrley, "From Pillar 10 POll": 'Ole I'rOlfClIl/{J/t (1/ ;\ IIII'I/{ 1/11 Preridrnts, 37 AM. CRI~1. L. REV. 1049, 1052 (2000) ("Impeachml'nt Sl'rvl" .1 (iIstlll( t, nOIlpunitive function. The Impeachment C1ausl' is designed to proll'rt thl' olli( (' 01 till' pre~idency . . . :). 22. Srr, e.g., //lIra text accompanying note, 500-0 I.

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ignoring the mention of "officers" and "remov[al]" and extending impeachment to all manner of private citizens. In other words, they see no principled constitutional basis to distinguish between private citizens who used to hold office and 23 those who did not. That, III short, IS the simple argument against late impeachment. (The complicated argument against late impeachment consists of various rebuttals to the argument in favor of late impeachment, and thus will emerge in pieces in the remainder of this article.) Unsurprisingly, given the closeness of this question, the argument against late impeachment is not unreasonable, and it has attracted significant historical and 24 scholarly support. Nevertheless, it also has problems-textual, structural, historical, and precedential-that in the end tip the constitutional scales against it. The argument Jor late impeachment is, relatively speaking, not as simple. It has several parts, each of which will be developed in its own Part of this article. A brief summary before embarking is useful. Textually, the Constitution does not address the appropriate timing of impeachments, and those readings that suggest it does are flawed.:!!; Structurally, late impeachment provides a more coherent and sensible framework for the timing of impeachment. Barring late impeachment would weaken the deterrent effect of impeachment and would allow malfeasors and Presidents to nullify Congress's impeachment powers in a way that is incompatible with the Constitution's structure.~' Historically, late impeachment was practiced before (and during) the drafting of the Constitution. but unlike other questionable aspects of impeachment. it was not criticized in the pre-constitutional era or explicitly trimmed back in tlle final document. 2i Finally, doctrinally, tllere is subsequent precedential support for late impeachment. not the least of

23. See, e.g., Souss, supra note 16 ("Inslead of impeaching Ih ... fonn ... r i'residl"lII. win not impeach acquitted murderer OJ. Simpson. whos... personal apprm'll r.lling~ ;Irl" C'\l"n lower than Mr. Clinton's? Ridiculous. you say? Well. nOI quile. if,,·... us... Ihl" S;lIl1l" flawl"d logic being disseminaled by those who claim Illat a fonn ... r offic ... r of Ih ... L·lIil ...d StaId is subject to impeachmenL~); infra note 356 and accompall~illg leXI (Bdkllap GISt."). 24. See, e.g., infra Part VIA (historical suppon); nOI~'S 49(}'501. 511·12. :,18. and accompanying texI (scholarly support). 25. See infra Part IV. 26. See infra Part V. 27. See infra Part III.

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which is the fact that the Senate once ruled specifically that it 2H had jurisdiction over a late impeachment trial. None of these arguments, alone or together, can conclusively prove that late impeachment is constitutional. The arguments in favor of late impeachment have caveats and flaws. Remember. this IS a close constitutional case. Nevertheless, the constitutional case for late impeachment has more strengths and fewer flaws than the case against it. III. HISTORY

While it is ordinarily proper to begin a constitutional argument with text and structure, in this case it is useful to begin with history. The history of impeachment practice will shed light on the meaning of the word "impeachment," which is important for textual understanding. Specifically, preconstitutional history demonstrates that impeachment is limited to public offenses and offenders, refuting the concern that allowing late impeachment would mean allowing the impeachment of any private citizen. This history also sheds light on the structure of constitutional impeachment, which is important for structural understanding. History shows the importance of the deterrent effect of impeachment, of which late impeachment is an important structural component. At the same time, history also provides independent evidence-it reveals that allowing late impeachment is feasible, desirable. and precedented. A. English Impearhment

English impeachment is the ultimate foundation of American impeachment.!!,l To be sure, American impeachment in l7H7 was also influenced by colonial and state experiences,"' but English impeachment informed those colonial and state experiences. 2H. Sff mfra Pan VI. 29. SrrTm: FEDERALIST No. 65, at 397 (Alexander Hamilton) (Clinton Ro's,t", ,·d . 19(1) (referring to British impeadllnent as "[tlhe model from which the idea 01 th,' institution [American impeachmentl h'L' heen horro\ved"); IPf fill() RAOl't H~,R(,~ R, hIPf.,\CII\IE:\T: TilE CO:\SHrllTIO:\AL PROIIU,~IS 3-<1, 217 (197:\) (dncrihing Fngli'h influences on American impeachment); GORDO:\ S. WOOD, eRE,\ ItO:-.l OF III~ I\M~ R(( ,\:--; REPllILlC 177G·17H7, at 141 (1969) (descrihing Engli'h Whig roots 01 I\III("I(.ln impeachment) . 30. Sff HOFFER & Hn,L, Ill/'ra lIote I. .11 2(iH (.11 guing that coloni.,1 .IIHI ',· impeachment precedellts "were far mon' important III inllll('ncing kd('r.11 1.lw th.II' English examples").

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and it further provided parallel precedenrs for the federal Framers to consider. Impeachment was practiced in England sporadically from the fourteenth century to the early nineteelllh celllufY." The hL<;t significant burst of activity occurred in the sevenleemh and early eighteenth centuries; impeachmenrs slowed LO a trickle by the 1720s and cease to be discussed after 1806.'~ In essence, English impeachment was a criminal proseclilion that began in the House of Commons instead of before a grand jury and that was tried before the House of Lords instead of the criminal courts. Because of this unique SU'ucture, it was directed particularly at public officials and public offenses. Initiating prosecution in the House of Commons rather than through a regular grand jury was not unique to impeachmelll; there was also the bill of attainder, in which Pariiamem would pass ad hoc legislation to punish an offender. Because a bill of attainder was a legislative act, however, it required the approval of both Parliament and the King.~~ By conUClst, impeachmem was a judicial process in which the House of Lords had the last word and the King had no voice. Impeachmem was also less ad hoc and developed its own common law of sorts." As impeachment did not require royal approval, it became a popular mechanism in the seventeenth century for Parliamelll to control the King's high officers.~' Pariiamem could not control the King directly-other tllan extra-legally-but it could impeach and convict his subordinates. Parliament's struggle to assert its authority over the King tllrough impeachment came to a head in 1679. In that year, King Charles II pardoned the Earl of Danby in order to preempt Parliament's investigation of the King's questionable dealings; Parliament responded shortly thereafter by limiting tlle pardon power to prevem such preemptive strikes in the future.:
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parliamentary impeachment power signaled a corresponding weakening in the independent power of the Crown and thlls, paradoxically, a decline in the need for impeachment. Once Parliament had cemented its control, and once the cabinet became responsible to the government rather than the King, there was much less reason to impeach anybody.<7 Even though reining in the King's ministers was the most significant use of impeachment, Parliament could and did impeach private cItIzens. English impeachment was not technically limited to public offenses or public offenders. Anyone (except the royal family) could be impeached, in essence because Parliament could do whatever it wanted (except to the royal family) .IH By the time of Blackstone in the mid1700s, however, the well settled rule was that a commoner could only be impeached for "high" offenses (i.e., those against the state) and that only peers could be impeached for both public and private offenses. 1'1 The impeachment of peers for private misconduct was based on the fact that the ordinary courts were not equipped to tl)' such significant defendants-peers required, quite literally, a jury of their peers. III As for the impeachment of commoners, the limitation of parliamentary jurisdiction to public offenses was significant. One must remember that Britain does not separate its powers; impeachment trials were held before a judicial body-the House of Lords-that sat as a court in other sorts of cases as well. II What made impeachment cases special was that the prosecution was directed by the House of Commons, the ll "grand inquest" of the nation for offenses against the statc. For 3i. See HOFFER & Hel.l., supra note I, at 28 (de~cribillg rise and fait of Impe
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mere offenses against the peace by mere commoners, the regular judicial process was adequate. For reasons of national institutional SU'ucture, then, impeachment was used to prosecute public offenders or public offenses, cases that "the ordinary magistrate either dare[d] not or [could] not punish."4s By 1787, English impeachment had further narrowed in scope. For over a century, "impeachment [had] c[o]me to stand for ajustifiable concern among the Commons for misconduct in high places."H The last (and anomalous) impeachment of a common private citizen was that of Doctor Sachevercll in 1709 for sedition. 45 Even before Sacheverell, virtually all GL'iCS involved either treason by peers or, more commonly, mismanagement by government officials. 46 To the extent that impeachment had been used in the memory of anyone living in 1787, then, it was for cases of public offenses by public figures. H Late impeachment was never a disputed issue in England. Initially, the bounds of impeachment were largely unlimited, and timing was no exception. Late impeachment was only an solemn grand inquest of the whole kingdoll1"); 2 JOSEI'II STORY. CO\.'U" I.\RU-', 0 ' nit CONSfInmON OF THE UNITED STATES 23i (Boston, Hilliard. Gr.IY. &: Co. H;:~:~) (quulIng Blackstone's successor Wooddeson that Parliament and 1I0t "ordman" .Irc equipped to deal with ·political" offenses). The "!,'T:md inqut"St" Iallguagc rcnt~ III discussions of impeachmenL Su, r.g., illfra 1I0te 2i6 alld tcxt a("("oll1p.I\I\;lIg lIot"" S:-'. Si, and 302. 43. 4 BLACKSTONE, supra note 34, at *260-61. B1acl-slOllt' ,,~'" 'pcaJ,.lIIg hcrc ullh of impeaching public officers. Se£ also BARO~ DE MO!\'TJ-:.sQl·IEl', Tilt: SI'IRII OF lin. L\\\'~. book 11, ch. 6, at 159 (Thomas Nugent trans., Hafncr Publishillg COll1pam 19·19) (I i·IS) ("It might also happen that a subject intmsted ,,;th .ht' adlllinistr:llioll of public i1ff;l1~ may infringe the rights of the peopk, and be guilty of crilll"" which thc ordlll;\n magistrates either could not or would nO! punish:). Justin' (alld Fr.l1ncr) J;l\ncs WiMn made the same point in his famolls V.clum; 011 JAIl' in I i91 . .w I TilE WORk,,> OF J\'U~ WILSON 426 (Roben Green McCloskt'y t'd., 196i), at'mlabll" III hllp: " pr~ ("Wt' lilld Ihc WIIIIIlUIU appearing as the grand inquesl of the nation, aboul Iht' lallt'r t'lId uf Iht' rt'ign uf f.d"~Jr(1 the thinl. They then began to exhibil accusations for Crilllt.,. and nllsdclI\cano~, ;tg~III"'1 offenders who were though I 10 be OUI of Ihe rt'ach of Iht' ordinan' pO"'t'r of thc 1;\1\,"), 44. HOFFER & HULL, supra note I, al 6 (charnClt-riljng Englil>h IInpcachlllt'1II frolll 1650s onward). 45. See UL at 4 (describing Saclle,'erell case). 46. See UL at 8 (describing IWO ~wt'll-dt'lined" calegonl'" 11110 "llIch ;tll impeachments fell after early I iOOs). 4i. See 2 RICHARD WOODDESO~, A S\'SrE~IATIC-\L "lEW OF !lit L\\\-.., ()~ E.'I.L\"1l *601 (London, Payne li92) (~A1llhe king's subjects art· impt·;lchablt· III parlt;tlllclII . Such kinds of misdeeds however as peculiarly injurt' Iht' COlI\lIIoll\,'calth b\' Ihc abl~ of high offices of truSt, are the mosl proper. and ha\t· bl·t·1I Ihl' IIlOSI \\Sual grouJI(b for this kind of prosecution."); BEUG-:AP TRIAL, supra 1I01t' I H. al 109 (O)lIlIlOIl of s,,1I;l\or Mitchell) (making similar historical poilll and aT'!,'lling Ihal Alllt'lican IInpt';tchlllt'1II incorporated English impeachmelll as ilexislt'd in liSi,lI
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Issue if the defendant was an officeholder. Additionally. punishments upon conviction in an impeachment court wcre severe-loss of property and even death werc not uncommon IX-and so punishment in impeachment cases was not mooted if the target left office. I" But late impeachmcnt remained as a sensible option even as impeachment becamc more focused on public offenses by public oflicials, and the punishments became more restrained.-" Impeachment was more about creating a culture of accountability than it was about removing bad men from office, which could be accomplish cd by other means anyway, and late impeachment exemplified this fact.'·1 Lord Chancellor Macclesfield was impeached and convicted for bribery in 1725, after he had left oflice.-,2 After that, no public officers were impeached'" until 1786, when impeachment proceedings began against Warren Hastings, the first (;overnorGeneral of India, for his conduct in that post.·" Like Macclesfield, Hastings had already left office:'-' but this hlCt was not an issue-accountability was. After several articles of impeachment against Hastings were approved over a pcriod of more than a year, the House of Commons impeached Hastings on April 3, 1787:'" shortly before the constitutional convention began in Philadelphia on May 25th. The trial in the 1·lousc or

48. .\ee HOFFER & III Ll., HI/ml note I, ,II :~ (dt'~(Tihing Engli.h impl"u 1IIIIt'IIt punishment.". 49. Cf il/fm Part V.B (discus.,ing disqllalilic,lIioll in American iml'e,u h!llent). 50. Lord Chancellor Macde~lield, for illstallce, was I elllO\ed lrom ollil I' (llot the one he walo being impeached about) ,md lint'd £30,000, IloFFER & III Ll., III/,/(/llote 1,.11 8 (de~cribing ~Iacdeslield caM'). 51. Cf /IIfm Part V.A (discus,illg ,\Ccolllltabdit) ,lIld detl'lTI'lIt elkl I 01 impeachment). 52. See 16 TIIO\lAS B.\\1.\' HO\\'~J.l., A COMPU n. COLI FCItO:-J OF SIAn. rRIAI.~ 7(;7· 68 (LOlldoll, TC. Hansard (816). 53. The 011 I} other case in the interim was that 01 j.\('obite cOII'pn
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Lords proceeded sporadically, until 1795, when Hastings was 57 acquitted. After Hastings, there was only one other impeachment in English history, and it too was a late impeachment. In 1806, Lord Melville was impeached for acts committed in an oflice he had held decades earlier; like Hastings, Melville was acquitted but not due to any suggestion that the impeachment was untimely.58 To summarize, by 1787 English impeachment was understood as being directed against public offenses by public offenders, for which Parliament was the proper venue for prosecution. The goal of impeachment was public accounulbility, not simply punishment. Late impeachments, such as those against Macclesfield, Hastings, and Melville, were thus perfectly • 59 appropnate. B. Pre-Constitutional Amenmll Impl'fldlllletll

In the eighteenth centuI)', impeachments were relatively common in the colonies, and later in tlle states. Peter Charles Hoffer and N.E.H. Hull have argued convincingly that American impeachment practice was deeply rooted and widely practiced, and it developed its own characteristics independently of the (comparatively fewer) contemporaI)' English cases.'" Moreover, the impeachment power in the states was generally rooted in textual authorization from the states' constitutions. The colonial and state experiences with impeachment tlms directly informed the federal constitutional impeachment power. Although late impeachment was less finnly established in pre-constitutional America than it was in England, it was known and accepted. 1. Colonial and Stene Cases Among the defining characteristics of impeachment on this side of the Atlantic was its unifonnly public character: Even 57. See id. at 411-12 (recounting Hastings's acquill;Il). 5S. See BELKNAP TRIAL, supra note IS. at 54 (discussing ~kl\il1<- C;~ dunng an American late impeachment tri;ll). The lengthy Mel\;lle G'-'l' is reported III 2<) II()wUj~ mpra note 52, at 549-1482. 59. See BEL&'IAP TRL-\L, mpra note IS. at 363 (opinion of Senator l'un,'uoc:i) (C'Il1ng Macclesfield, Hastings. and Mel\;lle precedents). 60. See HOFFER & Hl'LL. supra note I. at 268 (a'1.ruing thaI culum;1l ;md ,tate precedents "were far more important in inflm'neillg federal law Ihall Engll>h examples"). This is a point that peno.des HolTer and Hull's oouk,

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more so than in England, private citizens were only pursued through the regular criminal process or attainder but not impeachment, which was reserved for officers."1 When the colonies broke formally from England and wrote their own constitutions, they made these limitations on impeachment clear. In every state where the legislatur<:' had the power to impeach, private citizens were excepted,b2 By l7H7, then, "impeachment" had come to mean a process for the legislature to inquire into and prosecute public offenses by public officials. With the exception of Pennsylvania, no colonial legislature actually had authority to initiate and try impeachmen ts,''' Parliament in England was the proper body to initiate and try such cases, and so colonial impeachment constituted a usurpation of sorts."1 Nevertheless, the need to hold public officials accountable-and oust them if necessary-occasionally became too important for colonial officials to leave to distant England. Hoffer and Hull have found sixteen cases of impeachment, near impeachment, or quasi-impeachment in the years between 1635 and 1776.":; When the colonies declared themselves independent states and wrote constitutions, most of them provided an impeachment power for their respective legislatures. Impeachments picked up where they left ofT, holding public officials accountable for their public offenses. 6 I. See ld. at 14 ("From the first . . . the Amt'riran rases ~howt'd prolloulH"('d departures from English precedent. The Ameriran~ a("cu~ed W('I (. 111\'0111.11>11' officeholders . . . ."). Bill lee ld. at 28-30 (describing Massarhu~ett" caM' 01 111('1 ( h.1II1 captain Samuel Vetch. whose rase was labeled an attainder bul whirh 1"("('lIIhkd impeachment in some respects). 62. Cf. illJra Part III.B.2. 63. See, e.g., FRA~n: OF GOVER:-i~IE;\;'1 OF P~:;\;:-iWI.VA;\;I" OF MAY :>, I (ill2, .It !:i XIX ("[TJhe General Assembly shall continue so long a~ may be nl't'dlul to Imp('.I( 10 criminals . . . ."); see also CIIARn:R OF PRIVI[.E(;~~~ OF OCI OilER 211, 170 I, at !:i 2 (gl.llIlIlIg Assembly the power to impeach "criminals"); FRA\IE OF COVER:-1ME:-11 OF I'~;\;N"""I V,\NI,\ OF NOVDIBER I, 1696 (same); FRA~I~: OF GOVER:-I~I~::"I OF I'E:-l:-1WI.V,\NI.\ OF F~ IIRI' \R' 2, 1683 (same). The Mas.'achusetts judicial code provided before 1684 for "impeachlllt'III," hili hy Ill!' General Court. See HOFFER & i-ilTLI., supra note I, at II, 28. 64. See HOFFER & Hl'l.l., JIl/)ra nott' I, at 9 ("Americans lirM adopt('d illlp('.1( Iom('1I1 because thev grasped its ulility and were 1101 told 10 desiM, and rontillued to illlpl'.1I h even when proprietors and crown rOllncillors explicitly told the roloni'ls to '101' "); BEL"''',\!' TRIAl., supra note 18, at 149 (opinion 01 Senator Dawes) (discu~"lIg illh('I('1I1 colonial power to impeach). 65. See HOFFER & HCLl., supra note I, OIl 15-56 (describing wlonial imp('.lchllll'lIt cases, as well as others that re~embled impeachment).

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It was in the pre-constitutional state period that late impeachment first occurred in America. In 1781, ex-governor Thomas Jefferson of Virginia was subjected to preliminary impeachment proceedings for his conduct in office, though in 66 the end he was not impeached. In February 1787, Vermont impeached former assemblyman Jonathan Fassett for participating in a rebellion. The impeachment followed the decision by the Assembly not to reseal Fassett, so he was out of b office when impeached and when tried. ' He was convicted and disqualified from future state office.'" In both Virginia and Vermont, however, late impeachment was specifically referenced 69 in the state constitution. 2. State Constitutions The federal Constitution was not the first modern written constitution; it was preceded by twelve state constitutions that influenced it heavily. As such, pre-1787 slate constitutions are obviously useful sources for understanding the federal 70 impeachment power. Twelve states (all but Connecticut and Rhode Island, and including Vermont) wrote constitutions before the federal Constitution was drafted in 1787. Ten of the twelve (all but Georgia and Maryland) had impeachment prO\'isions in their state constitutions. Given the revolutiomuy spirit of amimonarchism prevailing in the states, it was hardly surprising that this strong check on executive power was written into most constitutions." The biggest dispute was over what body should try impeachments; the question of the timing of trials animated 72 less debate. The following are excerpts from state constitutional impeachment provisions, in chronological order of adoption. 66. 67. 68.

See id. at 85-86 (describingJefTerson case). See id. at 84-85 (describing Fassen case). [d. at 85.

69. 70.

See Gordon S. '''ood, SlaU eollsliIIl/IOII·.\lllklllj! /II I},I' .-\mfflrtlll Ilrt-olll/lOlI.

See infra text accompan)ing notes 74 and S:t

24 RUTGERS LJ. 911, 911, 925 (1993) (discussing broad inlhu.·nn· of Molle- comtllutiun.. on federal Constitution). 71. See WOOD, supra note 29. at 141 (-Nothing indicate" bl'lle-r huw thuwughh Americans were imbued with Whig apprehensions of misapplied ntling powe-r than the-Ir rather unthinking adoption of this ancient English procedure- . . . .-). 72. See id. at 142 (describing state debates O\er the prope-r bu
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The specifications of who can be impeached are italicized, and specifications of timing are in boldface. Virginia (6/1776) The Govl'77lor, when he is out of office, anti OtlWTS, oJJnulinK against the state, either by mal-administration, corruption, or other means by which the safety of the state may be endangered, shall be impeachable by the House of Delegates. Such impeachment to be prosecuted . . . in the General Court, according to the laws of the land. If ((HlIld guilty. he or they shall be either for ever disabled to hold any oflice under government, or be removed from such office pro tempore, or H subjected to such pains or penalties as the laws shall direct. . . . [T] he judges oj the GI'nt'ml Court . .. may, in like manner, [be] impeach[ed] . . . .i l

New Jersey (7/1776) [TJllp judgps oj till' SU/Jrf'mt' Court . . . [,J thp jIUIKf., 0/ tht' Inprior Court oj Common Plms in tilt' snwml Counti/'.I, jll.ltir/'.I oj" till' Pf'(lrt', Clf'rh oj tilt' Suprnnp Court, Cinkoi' of till' hl/t'rior COllrt 0/ Common Plms and Quartt'r SpSSiOllS, till' Attonwy-Gnwml, and Provinrial SprrPlm)" . . . aTid tltp Pnminrial Trl'fl.lll1"f'r . . . shall be liable to be dismissed. when a(~judged guilty of Misbehaviour by the Council on an Impeachment of the Assembly:"

Delaware (9/1776) /JI"f'Sirinlt, when he is out of office, and within eighteen months after, and all otilt'l"s o/JnulinK tit£' Statl', either by maladministration, corruption, or other means, by which the safety of the Commonwealth may be endangered. within eighteen months after the offence committed. shall be impeachable by the house of assembly before the legislative council . . . . If found guilty. he or they shall be either forever disabled to hold any oflice under government. or removed from office pro tnn/JOrp, or subjected to such pains and penalties as the laws shall direct. And all o!lim:~ shall be 711£,

73. 74. 7f>.

VA. (;O:-';S"1. of 1776. art. XVI (emph'lsis added). Id. at art. XVII (emphasis added). 01J. Co:-.;sr. of 1776. art. XII (ernph'l,i, added).

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removed on conviction of misbehavior at common law, or on impeachment, or upon the address of the general assembly. ;"

Pennsylvania (9/1776) The general assembly of the represelll
North Carolina (12/1776) [TJIle Governor ami other Offi::l'rS offending against the Slate. by violating any Part of this Constitution. l\ial·Administration, or Corruption, may be prosecuted on the Impeachment of the: General Assembly . . . .


New York (4/1777) [A] court shall be instituted for the trial of impeachments . to consist of the president of the senate. for the time being. and the senators, chancellor, and judges of the supreme court, or the major part of them; except that when an impeachment shall be prosecuted against the chancellor. or either of the judges of the supreme court, the person so impeached shall bt, suspended from exercising his office until his acquittal . . . 8Q

[T]he power of impeaching all officers of Ihl' Siale. for mal and corrupt conduct in their respective offices. be vested in the representatives of the people in assembly: but that it shall always be necessary that two third parts of the me:mbers present shall consent to and agree in such impeachment. That previous to the trial of every impeachment. the nwmbers of the said court shall respectively be sworn truly and impartially to try and detennine the charge in question. according to 76. DEL CONST. of 1776. art. 23 (emphasis adclt-d). 77. PA. CONST. of 1776, ch. 11. § 9 (elllpha"" adckd). I'l·nm\h~III1.L\ ('r<"independence Frames of Go\"emmelll g<1\'e the colonial ;""elllbl\' thl' (,"her to 11111>.,..Lch ~criminals." See supra nOll' 63. 78. PA. COl'ST. of 1776. ch. 11. § 22 (emphasis adclt-d). 79. N.C. COr-ST. of 1776. arL XXlII (emphasis added). 80. N.Y. COl'ST. of 1777. arL XXXII.

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evidence; and that no judgment of the said court shall be valid unless it be assented to by two third parts of the members then present; nor shall it extend farther than to removal from office, and disqualification to hold or enjoy any place of honor, trust, or profit under this State. But the party so convicted shall be, nevertheless, liable and sul~ert to indictment, trial, judgment, and punishment. according to the sl laws of the land. Vermont (7/1777) [T] he General Asembly [sic 1 of the Representatives of the Freemen of Vl'T11Iont . . . may . . . impeach Stall'rriminaLI,."2 1:vl'T)' oJJicpr of Statl', whl'lher juriiria[ or I'xl'rlltivl', shall be liable to be impeached by the General Assembly. either when in office, or after his resignation, or removal for l11aladministration .. South Carolina (3/1778) [T] he form of impeaching all o/jirprs of till' Slall' for l1Ial and corrupt conduct in their respective offices. not amenable to any other jurisdiction, be vested in the house of representatives. But . . . it shall always be necessary that twothird parts of the members present do consent to and agree in such impeachment. That the senators and such of the judges of this Slate as are not members of the house of representatives, be a court for the trial or impeachments, under such regulations as the legislature shall establish, and that previous to the trial or every impeachment. the nH'mbers of the said court shall respectively be sworn truly and impartially to try and determine the charge in question according to evidence, and no judgment or the said court, except judgment of acquittal. shall be valid, unless it shall 1)(' assented to by two-third parts of the members then present HI

81. Iri. at an. XXXIII (emphasis added). 82. VI'. (;O;\;ST. of 1777, eh. 2, ~ 8 (emphasb added). The substance 01 till, pi (lVi'IOII remained in the revised Vermont Constitution of I 78(), eh. 2, ~ 9. 83. VI'. (;0:-15'1. 01 1777. eh. 2. ~ 20 (emphasb added). The sub~tan«' 01 thi, provision remained in the n'vised Vermont Constiwtion of I 78(). ch. 2. ~ 21. 84. S.C. CO:--;ST. of 1778. art. XXIII (empha~is added). An earlln (I 77li) eon~titution for South Carolina made no provision for impeachment.

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Massachusetts (3/1780) The House of Representatives shall be the Grand Inquest of this Commonwealth; and all impeachments made by them shall be heard and tried by the Senate ...... The Senate shall be a court with full authority to hear and determine all impeachments made by the House of Representatives, against an)' offifRr or officers of /IIl' C011/11/o1l!vt'lll'", for misconduct and mal-administration in their offices; but, previous to the trial of every impeachment, the members of the senate shall, respectively, be sworn mil)' and impartially to try and determine the charge in question, according to the evidence. Their judgment, however, shall not extend further than to removal from office, and disqualification to hold or enjoy any place of honor, tmst, or profit under this commonwealth; but the pan so cOIwicted shall be, nevertheless, liable to indictmen4 u'ial, judgment, and punishment, according to the laws of the land.N> New Hampshire (6/1784) The house of representatives shall be the grand inquest of the state; and all impeachments made by them, shall be heard 8 and tried by the senate. ' The senate shall be a cour4 with full power and authority to hear, try, and determine, all impeachments made by the house of representatives against an)' officer or officers of /IIt' S/ll/e, for bribery, cormption, malpractice or maladministration, in 88 office . . . . Their judgment, however, shall not extend further than removal from office, disqualification to hold or enjoy any place of honor, tmst, or profit, under this st'lle, but the party so convicted, shall nevertheless be liable to indictment, trial,

85. MASS. CONST. of 1780, pt. I, ch. I, § 3, art. 6. III 1778, ~lassachlbl'l~ rl'Jl'Cll'U .1 proposed constitution that would have vesled ill Ihe House -Ihe pO\\'l'r of IIllpl';l("llIllg .111 officers of the State for mal.- JOllL'\AL Of nit. CONVENTION FOR F'RA.\IING A CONSTITlTION OF GOVEIL,\MtXI FOR IlIt. SLUr. Of MASSACHUSETTS BAY, FROM THE COMML'\CBIE.'T OF Tm:IR FIRSI St~IO:-', SU'lBllltJt I, 1779, TO THE CLOSE OF THEIR L-\STSESSION,Jl'NE 16.1780, al 2:,:" 262 (Bo,toll. DUllun and Wentworth 1832). 86. MASS. CONST. of 1780, pt. I, eh. 1. § 2. an. 8 (emph;bb ad(kd). 87. N.H. CONST. of 1784, pt. II, an. 17. 88. [d. at art. 38 (emphasis added). The eariil'r (1776) CUI~lIIl11HIII for :>;r\\ Hampshire made no provision for impeachmelll.

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Several important patterns emerge from these state provIsIOns. First, they make clear the poor drafting of the federal Constitution-which specifies only that oflicers shall be removed if convicted, not directly that Congress has the power to impeach officers in particular-given the abundance of clear constructions in the state constitutions. In each of these state provisions (with the exception of New Jersey), the designation of who can be impeached appeared alongside the grant of authority to the legislature to pursue it:'" In six states (Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina, and Vermont), the authorization took the form of a limited grant of power: i.e., "the legislature has the power to pursue public offenders through impeachment." In the other three (Delaware, North Carolina, and Virginia), the authorization took the form of an explicit limitation on the officers themselves: i.e., "public oflicers can be pursued through impeachment by the legislature." Though it is conceivable that others could be impeachable as well, the f~lct that there is no provision for anyone else to be impeached suggests that only officers are subject to that form of penalty.'>! Only New Jersey foreshadowed the poor wording of the federal Constitution, in which impeachment is only mentioned obliquely in a removability provision that gives little inkling as to whether others (removed or not) may be impeachable as well. A second pattern is that in each constitution. late impeachment was either required, permitted, or not discussed. but was nowhere explicitly forbidden. The first state constitution to feature impeachment:'2 Virginia's, was practically English in scope: it almost seemed to allow impeachment of anyone. not

89. Id. at art. 39. 90. Justice Story noted that the purported limits on who could be IIl1pe.l( hed .IIHI for what would han- been better placed in Article I of the Constitution rathel th.11I Article II. See 2 STORY, llI/m/note 42, at 255 ("By ~ome 'trange illadvl"ften(T, thl' 1'.11 t of the constitlllion has been taken from its natural conllexion, and wit h 110 gl I" 01" H·tl' arranged under that head, \~hich embrac<", the organi/ation .• lIId right" arrd dutH" of the ('"<'cuti,,e department."). 91, Spp lIIlra text accompanying note, 189-97, 92. l\cw Hampshire and South Carolirra drafted corr'titutlon, bdore \'rr gllll.1 dId. but neither pro"ided for impeachmerrt. Sep:-';.1 I. CO:--;S I. of 1776; S,C. (:ON\I. of 177li

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just officers, who offended against the state:" and it did not limit the potential range of penalties. The principal limit it imposed was that the Governor could not be impeached until he left office. Implicitly, other officials could be impeached in or out of office. To the Virginia drafters, then, late impeachment was not only potentially worthwhile, it was the only acceptable way to proceed against the Governor. To be sure, this may reflect the fact that the Governor's term was only one year and that he was chosen by the legislature, making removal less important:" But for' the Governor, at least, impeachment was very clearly about accountability rather than removal. The Delaware Constitution adopted the Virginia formulation. with a slight variation. Delaware added an eighteen-month statute of limitations for impeachments, tolled for the "president" (Delaware's title for governor) until he left ofIice. Other officeholders could be subjected to late impeachment. too, if they left office before the eighteen-month period expired. In Delaware as in Virginia, then, late impeachment was possible for any official and was tlle onl), way to proceed against a governor. Another early effort, the Pennsylvania Constitution of 1i76. gave late impeachment a more nuanced treaUllent. Like Virginia, impeachment almost seemed as if it were not limited to state officers;95 the General Assembly was authorized to impeach any "state criminal," just as it had been for decades before:'" But an executive or judicial state official qua state ofIicial could not be impeached once his term of service had expired naturally. If he was still in office or if he had resigned or been removed. he could be impeached. Late impeachment was possible, in other words, but only against those officers who had left of11ce under abnormal circumstances. This made it clear that impeachment was about accountability and not just removal. so much so that the officer could not preempt proceedings by resigning or by being so bad that the legislature removed him in advance of his

93. See infra text accompan}ing note \02 (t-xpl:tillillg limilalloll of Virgllua impeachment to officers). 94. See VA. CoNSf. of 1776. an. IX. 95. See infra text accompan~ing note \03 (t-xplalJling illhl'rt'lII 1111111:111011 of Pennsylvania and Vennont impeachment to officers). 96. See supra note 63.

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trial.''' impeachment Vermont Pennsylvania 's copied formulation. Five other states' impeachment provisions-North Carolina:'" New York, South Carolina, Massachusett<;, and New Hampshire-did not specifY that late impeachment was acceptable, but neither did they forbid it. Writing as they were against the backdrop of the Virginia and Pennsylvania formulations that provided for late impeachment, one might have expected these newer efforts to be explicit if they were making such a fundamental change. To be sure, one can argue that they were being explicit-by conspicuously omIttmg the Virginia/Pennsylvania broader timing language. But the Virginia language was a limit on timing: Virginian Governors and Delawarean President<; could only be impeached after leaving office, so removing that language would presumably have added an option (i.e., regular impeachment). not subtracted one. Pennsylvania (and Vermont) barred impeachment of officers whose terms had expired naturally: removing that language just as easily could have been Illeant to expand impeachment as to restrain it. Moreover, after explicitly allowing late impeachment, Pennsylvania used the term "ollicer" to describe those who were officers when they committed crimes, not just those who were officers at the time or impeachment. Later constitutions, speaking only or officers without reference to timing, could just as easily have been using the term with similar breadth. Furthermore, four of these states were explicit in placing other limits on impeachment that earlier state constitutions lacked. New York invented-and specified-the requirements of twothirds majorities, a special oath for impeachment judges. and a ban on punishments greater than removal and disqualification. South Carolina, Massachusetts, and New Hampshire followed suit, in part. The eventual language in the U.S. Constitution closely tracked the language of these four states' constitutions.

97. See PA. CO:-lST. of 1776. ch. II. li 34 (ma"ing probate oflker~ n·IIH)\,•• bk .It tht" "ill of the general assembly). 9H. :\'ote that North Carolina', provbion was milch narrmV("1 in 'copt" th.ln It, counterpartl.. It used impf'achment as a first step in allowing crlmin.ll pI "'("(,lltlOn of officeholders. It did not specify rf'moval-or anything dse-as .1 penaltv. It '11II1'h substituted the General f\.<.sf'mbly for a grand jllry in the reglliar rrimin.ll pi on'". 11\ tht" case of public offenses. See IIllml note 79.

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Law, Histor)', and Practire of Late imp{'(lchmrllt


Despite adding these specific limitations on the impeachment powers, these four states added no specific limitation on the timing of impeachment, Significantly, tllOugh, they did specify that the offenses covered by impeachment were only those committed while in office, This made clear that impeachment did not reach private conduct or private parties, r-,·Ioreover. it made clear that impeachment was not designed just to remove bad men from office-private offenses committed prior to taking office were exempt from review via impeachment. Thus, impeachment in these four states was not designed to keep criminals out of public office, it was designed to keep oflicers from becoming public criminals, A critic of late impeachment could argue that things like twothirds majority requirements are not self-evident and. therefore, require specification, and tllat late impeachment is similarly counterintUitIve and also requires specification, Virginia specified late impeachment and not two-thirds m(~orities; New York specified two-thirds majorities and not late impeachment. But as noted above, the Virginia, Delaware, Pennsylvania, and Vermont formulas made specific reference to late impeachment in the context of limiting it, while using language that suggested that late impeachment was otherwise implicitly permissible, Therefore, allowing late impeachment is the self:.cddent proposition, not the counterintuitive one, and f~lilure to explicitly bar it while specifying other limitations on the impeachment power is a telling omission, Another potential point against state late impeachment is that the Virginia, Delaware, Pennsylvania, and Vermont constitutions, which explicitly allowed late impeachment. also suggested that any "state criminal" or "offend [er] against the state" could be impeached, not just oflicers:" By contrast. the newer constitutions specifically limited impeachment to officers,tOO A critic thus could argue that late impeachment was implicitly permissible only in tllOse states where holding oflicc 99, See HOFFER & HULL. supra not~ I, at 70 (dt',,:nblllg -\~lgllt'IIl'>.'>- of \,irgllllil language that might ha\'e allowed for illlp~achlll~1\I of pl1\~lIt' <"iu/t'm alld ('x,o!1in'r.); BELKNAP TRIAL, supra note 18. at 121 (opinioll of St-nalOr :\lli~oll) l:lfglllllg th.1I \'irgllll;1 and Delaware Constitutions allowed illlp~achllll'l\I of lIoll'oflin'r..); ",pm tt'xt accompanying notes 77-78 (stating P~nnsyl\'.. nia·s illlPt';ldlllll'l\I J>ron~IllIl'); "'P'" tt'xt accompanying notes 82-S3 (stating Venllol\l's illlp~achllll'1\I pnl\·IMolI'l. 100. In Massachusetts. a proposal 10 allow illlpl'achlllt'l\I of 1H1Il,ollin'r. \\~L' specifically proposed and rejected, SrI' stl/Jra not~ 85; HOn1-.R & Illll. "'P'" 1I0tl' I .•11 76.

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was not a requirement for impeachability. In states where private citizens could not be impeached, it would not he s(')(~eviden t that impeachment could reach people who were no longer in office. But even to the extent that this might he true as a mailer of technical textual construction, it does not resonate with the actual practice of impeachment. There are no instances or impeachment being used against private citizens-other than ex-officers-in any state. lUI Indeed, read in con text, the text or the older constitutions supports this more limited construction. For instance, the grounds specified for impeachment in Virginia and Delaware-maladministration and corruption-would seelll to apply only to public officials, and there is evidence that the Virginia language was meant to expand the class of offenses. not lu2 the class of offenders. In Pennsylvania and Vermont only maladministration was specified, and the term "state criminal" appears to refer only to officers (i.e., administrators, allegedly I mal). Later case law bears out this interpretation. In sum, state impeachment provisions fell into two broad categories. The first group both provided for and implied the underlying propriety of late impeachment. The second group. which more directly influenced the federal Constitution. did not attempt to limit the scope of late impeachment enshrined in earlier state constitutions. States designed impeachment as a means of ensuring accountability for official action rather than simply a mechanism for removing "bad men" from office. In some states late impeachment was actually performed and !)'

I 0 I. Bill r/ IloFFER &: III U. mImi note I. ,It 29-:10 (diM II,-,mg \' el, I. ',I"'. "I.I( 10 imolwd pri\,lIe citi/t"n and had impeachment-like qll,lliti(" dnpil(' I)("mg 1.(1)("1<-<1 attaiIHI"r). 102. .\1'1' ROBERI P. Sl rlO:-", R~\'()u 110" 10 S~U,"''''IO'': CO:'>;'" I I I t 11o" ~I \""'t, I" rtlF 0111 DO\II,IO, 'I:~ (191'9) (de~criblllg.1 d,.lli of th .. Vilgini.1 ,omtltlilion ,,111,10 darifie~ that ",af.. t\, of tht" Stat .. " 1.1IIgllag.. wa' part of th .. definition of IIIIpe.1( h.,hlrt, this lugh u,ltlOnal t"bllll.l!. "IH'I" Ih" ,olemllity and publici tv of the trial will !'ith .... pubhch plllg!" 11.('11 "Ifirw/ {illI/mll'/\ hOIll imputed crime, or make their 1II(//-(/t!IIl/lll\lml/{1Il kllOWII to th!' (111/1'11' .11 I.llg!', .ulIl t"specially to those in whom n',ts comlllollh the ripr/lilll 10 o/firl',") «-lIIph.I'I' .1(1<1<-<1>. Ilan'i, v, IlulltingtoJl, 2 Tyl. 129, 144-45 (VI. 11'(2) ("It j, to he ohM'n('d, th.11 though II I' true the hou,,' of representatives ha"e no pow .. r 10 try per.oll' for cr IIIH", wt It dOl"~ 1101 follow that the, may not examine illio th .. cOllduct of o/l;"n "I KOllI'mlll{'II/ , III<' cOII~litutjoll gives th .. powel' to the hOIl'!' of II'!>n',,'lIIatIV(" , , , to ""1)('.11 I. ,I{{II' rl"ll11/lw[,,"") (emphasis added),

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Law, Histar)" and Practice oj Late !mpmdl11wlIl

authorized, and where it was not, it was at least compatible with the text and structure of state impeachment. 3. The Articles of Confederation The Articles of Confederation, drafted in November 1777, did not contain any provision for the impeachment of national officers. In 1786, as it became apparent that a stronger national government was needed, the Congress appointed a committee (which included two eventual delegates to the constitlllional convention) to draft amendments to the Articles:'" The amendments were reported in August 1786, six months before the constitutional convention was called but were never acted 105 upon. Among the amendments were two that touched on the issue of impeachment. The proposed Article 9 alilhorized the unicameral Congress to "institute a federal Judicial Court for trying and punishing all Officers appoimed by Congress for all crimes, offences and Misbehaviour in their Oflices . . . .H"" The proposed Article 20, directed at ensuring sufliciel1l attendance in Congress, authorized Congress to punish delegates who failed to attend when required by Congress or withdrew without either permission from Congress or a recall from their state, though the punishment could not be "further extended than to disqualifications any longer to be members of Congress, or to hold any Office of trust or profit under the United States, or any individual State . . . ." 107 Neither of these provisions used the word "impeachnwnt. Both, however, established the power to punish oflicials for dereliction, and both were directed at accountability, not removal per se. Indeed, the punishment for A\\'OL delegates to Congress presupposed that the party was, 111 a sense, Olil of office. These proposed amendments to the Articles of Confederation, while not shedding abundant light on the H



(Merrill Jensen ed., 1976) (melllioning that flllllrl' fr.IIIIl''''' Chari •." l'",d.. lIl'\ .",e1 William Houstoun were on this -grand cOlllllliul'l"-). 105. /d. 106. Id. at 167. 107. Id. at 167-68.

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question of late impeachment. nevertheless provide mort' positive data.

C. The framers and the Ratijiers The Framers established the federal constitutional impeachment power against the backdrop of English, colonial. and state impeachment doctrine described above. Their intent with regard to late impeachment is unclear. The notes on the convention debates are sketchy at best and do not directly address the issue of late impeachment. They do, howewr. provide tantalizing bases for an inference that late impeachment was acceptable to the Framers or, if not intended. was at least not intentionally subtracted from the congressional impeachment power. This is especially significant given that a well-known English impeachment case-a late impeachmentwas proceeding as the convention sat. Many Framers considered the state ratification debateswhich, unlike the convention debates, were not secret-the most valid source for construing the original understanding of tht' provIsIOns in the Constitution. III" Unfortunately, the state ratification debates provide only sketchy evidence toward resolving the puzzle of late impeachment. They do suggest. though, that the impeachment power was understood as being quite broad. V\'hile the federal impeachment power was mort' closely connected with removal than it<; state counterparts had been, it remained grounded in a desire for accountability and deterrence. Late impeachment may not serve the [<>rIner goal. but it certainly serves the latter. 1. The Convention By the time of the constitutional convention. tht' revolutionary ideology had been transformed in significant ways. The fear of executive power that informed state constitutions had shifted; now the legislature was the branch to constrain. and

lOR Sel'. e.g.• Ronald D. Rotunda. Ongllw/ In Inti. /lw \';1'111 liflhe Fmmrn. 1IIIIIIhl' N,,/I' "/ Ihe RalijinJ. 41 v,\ ,n. L. REV. 50i. 512 (19HH) ("When we t.llk poplllarly .Ihollt the framers' intent. we really shollld be 1II0re precise and refer to the ratifie,,' illtellt. Alexander Hamilton in nll'l'i,tlnll/HI 1'11/)('" called 'the intention of the people ...·). K07imki & lIarn SlIsman. Ongl1lll/ .\I1'//1//tll'1/llIg'o. ·19 51 \'>. L. R~v. 15H:{. !fiO:1 (1'1!li) (discussing ~Iadi~on \ reliance on the ratifier,' 1IIf('nt in interpl etlllg the' (;01l't;1II1101l)


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tolerance for executive power had increased.·'" That said, impeachment was still considered a necessary check on executive (and judicial) power. Delegates came to the convention aware of their own S~lle constitutions and precedents, and of English precedents.Il'J The Framers discussed impeachment at length and on several separate occasions at the convention. The Issue of late impeachment never arose explicitly, but several of tlle discussions provide bases for inferences about the Framers' understanding of late impeachment, and suggest that late . h ment was accepte dill Impeac .

a. Initial Proposals Impeachment was placed on tlle table almost from the stan of the convention. On May 29, Edmund Randolph offered the "Virginia Plan," which formed tlle baseline for subsequent discussion over the next few weeks. In it, Randolph followed the Virginia state structure of having impeachment trials in regular courts: He proposed that the federal supreme coun would "hear and determine ... impeachments of any National officers."llt On June 2, the Committee of tlle \"'hole, working from Randolph's proposal, came to discuss tlle remo\or.III ... Ol" Hastings case. HOFFER & HL'LL, supra nOl ... \, at 96. Thl'" abo CnliclI'" lkrg ... r's assumptions, asserting that the Framers used English Cil:.l'S .1:. -colllII ... rcXillllpll'!> ,lIId passing illustrations" rather than rel)ing on th ... m as good \;1\\', 1tI, .11 266- iO. Ill. Other discussions on impeach melli, panicularh Ih.· ... xhamu\ ... dl""I~IOIl' o\'er which body should try impeachments, ar... not disn~"d in Ih" Pan .•1:. Ihn do 1I0t implicate the late impeachment issue, 112. 1 THE RECORDS OF THE FEDERAL CO:-:VE.'TIO:-: OF I iH7, al 22 (~Iax F.lffillld ... d., 1911) [hereinafter RECORDS], At IIle sam ... timc. Chari ..., Pin<:klll'\ IIIlrodu<: ... d 1m 0\\'11 drnft constitution, which ga\'e the Housc th ... powl'r to illlpl'a<:h and nlablbh ... d Ih ... Senate and Supreme Coun as IIle impeachmcnt coun. par.,llding Ih." ,tm<:tur... III SOlllh Carolina. Pinckney prO\ided scparatcl\' for th... rl'lllo\~11 of Ih... Pr...."ldclII \~a impeachment. This account of Pinckncv's Plan is b.l:.... d Oil th;1I I> .... <: ...d log ... th ... r '" Farrand. See 3 id. at 606, 608,

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President be removable by Congress on the request of a m;~jorit)' of state legislatures, a notion that no other delegation 111 supported. The next removability proposal, however, was approved: The delegates voted to make the President "removable on impeachment and conviction of mal-practice or neglect of duty."II' At this stage in the drafting, then, impeachment applied to all national oflicers, while removability and the standards for it were discussed only in the context of a sitting President. Significantly, four states voted against making the President removable on impeachment: Maryland (which had no provision for impeachment in iL'i state constitution), Virginia, Delaware, and Pennsylvania. II; Recall that in the Virginia and Delaware constitutions, the governor was not impeachable while 111 oflice." At home, these states supported the idea of impeachment for officers in general and for the governor in particular. At the convention, their delegations offered no objection to a parallel structure for the federal Constitution. It is readily inferable, therefore, that while the Virginia and Delaware delegations opposed the idea of removing a sitting President by impeachment, they would not have ol~jected to {all' 7 impeachment of the President." Pennsylvania too allowed late impeachment, and iL'i delegation may have felt the sallle way as Virginia and Delaware. The next development came on June 15, with the introduction of vVilliam Paterson's "New Jersey Plan," a hroad counterproposal to Randolph's Virginia Plan. The New Jersey Plan also provided for impeachment trials of ''federal orIin:rs" to be performed in the federal court'), but separately advanced the Dickinson proposal that the President be removable by Congress on application of a majority of state legislatures."" Once again this proposal went nowhere, but like Randolph, Paterson had provided a general power to impeach national officers and a h

I I:t 114. 115. 116. 117. n'moval Officers IIR

.\('(' I ul. at H5-87. I id. at 7R I Ill. at 79. See wln(l text accomp
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wholly separate provision ensuring the n."mo\·ability of the President. On June 18, Alexander Hamilton proposed a broad plan as well, in which it was specified that "The Govemour [i.I'., President,] Senators and all officers of the United States to be liable to impeachment for mal- and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit . . . . nll" Here and elsewhere,'''' Hamilton seemed to believe that removal was a required component of the impeachment penalty, which suggests that he viewed late impeachment as impossible. On the other hand, Hamilton's later writings on impeachment in Tht' Fl'tirrali.!>t Papen'-Construing the Constitution as actually written and not his own unadopted proposals-can be construed more favorably 1"1 to late impeachment. b. RellUJving the Presitil'1ll In late July, an intense debate raged over the impeachability of the President, which remained in the working draft (b,L'ied on the Virginia Plan). Some, fearing that the proposed legislature was already much more powerful than the proposed Presidelll, did not want to place the PresideI1l at the mercy of the Congress; instead, they would have advanced accountability by replacing impeachment with shon terms and the possibility of re-election.':!:! Many of the comments emphasized the importance of being able to remove a silting Presidelll through impeachment; this focus gives an undue impression that late impeachment was not considered possible, when in fact the issue simply was peripheral.'~~ The same W,L'i true of comments on the other extreme, which argued against all)' impeachment of the President, implicitly excluding late impeachmelll as well, but not addressing the timing issue per st'.'~' In one instance, however, the debate avoided these extremes and provided a glimpse, albeit vague, of some Framers' 119. 1 id. at 292. 120. See 3 id. at 626-2i (discussing a plan u\, Hanllhon th.1I \\~L' not pll~·ntt"d. \,llIlh would have limited punishmelll to remO\-.l1 or rem()\~11 pilL' d"'I".llllk.lllOn) 121. See infra text accompanying note 145. 122. See 2 RECORDS, supra note 112. at :,:1. At that POInt III th,' dd>.II'·. til,' ),,,... ,d("nt was impeachable, served six years. and (ould not be n'elected. :! III .11 ;,1 123. See, e.g., 2 id. at 66-6i (conullen", of l'ind.Ill'\ and KIng) 124. See, e.g., 2 id. at 65-69 (cOillmen", of :'Iadis(}n. R.lIIdolph. ,lIId :'Iorm)

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understandings of late impeachment (to the extent thaI Madison's notes of the occasion are reliable). On Jlily 2(), immediately after Charles Pinckney and Gouverneur Morris moved to strike the provision authorizing removabili ty of the President, the following exchange occurred: Mr. P[inckney] observd. he ought not to be impeachable whilst in office. Mr. Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this an essential security for the good behaviour of the Executive. Mr. Wilson concurrcd in thc nccessity of making the Execlltive impeachable whilst in office. Mr. Govr. Morris . . . . In case he should be re-elected, that will be sufficient proof of his innocence .... Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man he above Justice? . . . One objection agst. [the Electoral College] was the danger of their being corrupted hy the Candidates: & this furnished a peculiar reason in favor of impeachments whilst in officc. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?I~-'

This debate was not really about impeachment-it was about removability.12h The clause that Pinckney was trying to eliminate provided that the President was "to be removeable,,,m not that he "be impeachable." National officers were generally impeachable; the issue here was, as Pinckney put it, whether the President (whose term was othenvise definite and limited) ought to be "impeachable whilst in office." In other words. Pinckney arguably presupposed the possibility of late impeachment, and was concerned only with whether "regular" 1"K impeachment was acceptable as well. 123. 126.

2 Id. at 64-65. S"" Id. at 11>5-1>6

(recording dralt lrom Committt'e of [let.1I1 pl.1t IlIg between prclYi~ion' for presidential oath and \'ice l"t'"dt'lIl1.t1 succe~sion); 2 id. at 499 (recording recommended language from COllllllittt,t, 01 I-:lt'\('11 placing remo\'abilit) pro\'ision in salJle clause a~ ,"cn,.,sion proviMon). 12i. 2 uf. at 64. 12K Bul ,,,,, BELK:-'AI' TRI.\L, mImi note II>, at 119 (opilllon of Sen.Hor Alh.,on) (" stating-withollt citing am support-that Pinckne\ Oppo.,t'd .IIIV I III I't'.1t hllWllt 01 Ih .. President at all\' time). remo\

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William Davie responded to Pinckney that Kregular" impeachment was important because if it were not available, the President would attempt to win reelection by any means necessary. Davie, who came from North Carolina, where late impeachment was not discussed in the constitution, could have meant t\vo things by this. First, Davie might have presupposed that late impeachment was possible and argued that if 0111)' late impeachment were available, a malfeasing President would entrench himself in office to avoid it.I~' Alternatively, Davie could have meant that a President could entrench himself in office if he corruptly won reelection and there was no other means of removing him-in which case late impeachment would never be an issue. Madison next described James '<\'ilson as using the same "whilst in office" construction. Gouverneur Morris had more faitl1 tl1an Dm'ie in the Electoral College, but George Mason shared Davie's concern about a President who would do anytl1ing to get reelected. :--':otably, however, Madison quoted Mason as speaking of the right of impeachment being "continued," as opposed to it merely being "available." This suggests tl1at to Mason, the issue was whether impeachment would be suspended during the President's term or instead would be continuous. The word "continued" makes little sense if the only options were eitl1er impeachment in oflice or none at all. In other words, Mason appeared to presuppose late impeachability. Mason's final comment, tl1at a President could Kescapc punishment" for fixing an election by fixing the next one, reveals a similar presupposition. If late impeachment were not an option, then reelection would not allow the President to "escape" anything: Once his new term ended, he would not have to face impeachment. Of course, Mason might also have feared a President stealing eue1)' election and Slaying in power for life. If he were able to win every election and was not susceptible to I removal, then he would indeed escape punishment. '" But as 129. See Uf. at 53 (argument of Hous ... manag... r in lall' IlIIpl·.Khlll,·1II tn.11 dl'l-IL>.>lIIg Da\ie statement, and arguing: "Whal good would il do huu 10 b.· \<·,d .......d If h.· (ollid not be impeached anyway if h ... was 0111 of offic..?-); /(1, OIl \:',0 (OpIIIIOII of Sen.llor Dawes). 130. This concern of Davie's and Mason's \\~U. 1II001..d b\' Ih.· 'i\,.. III\,S,,('Olld Amendment. U,S, COl\ST. amend. XXII (-No p .. rson shaH b .. d"nl'd \0 Ihl' .,lIkl' of Ih .. President more than t\\ice . . . ,-). Now, Ih .. Pr..sidl·JI\ IIIILSI 1...1\ .. "Ilk .. (,\l'IIIU.llh

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with Davie, if this is what Mason meant, then his cOlllments did not implicate late impeachment at all. This bl'ief exchange about whether the President should he impeachable "whilst in office" therefore provides some evidence to support the notion that late impeachment was considered possible by the Framers. The corps of national officers was to he impeachable; the only question was whether to exempt the sitting President. The impeachability of a J017lwr President-and thus of any former officer-was implicit or, at the very least, not ruled out. In the process, moreover, the notion was reinforced that impeachment is about accountability and detern'lHT ("providing essential security for the good behaviour of the Executive," as Davie put it) and not just removability."1 c. The Hasling\ Paradigm The next exchange providing inferences on the Frame) <;' understanding of late impeachment did l10t come ulltil September H, in the debate on defining impeachable oH<"w.;('s. Again, l\:ladison's notes provide the crucial implications: The clause refi.'rring to the Senate. the trial of impeachments agst. the President. filr Treason & bribery. wa<; taken up, Col. Mason, Why is the provision restrained to TI easoll & bribery only? Treason as defined ill the Constitution will not reach many great and dangerou<; ofknces, IIrLllinK\ is n(ll Kllil/)' oj Trl'{{.loTl, Attempts to subvcrt the Constitution lIlay lIot be Treason as above defined- As bills of attainder which have s;{w'd the British Constitution are filrbidden, it is the lIlore 11(.·ce~sary to extend: the power of impeachments, I Ie lIlovd, to add after "bribery" "or maladministration," Mr. (;er ry seconded him1"[r. .\Iadison So vague a term will be equivalent to a It'nul (' during pleasure of the Senate, ~[r. Gon Morris, it will not be put in f(>lTe & can do no harlll- An election of evcry fiHlr years will pr('\'(' 11 1 maladll1i n istratiol1,

(unle" he can contriw ~ome W;I\ to h('conH" I'n"ld('nl wlthollt ht'lIIg eI('( ((,d) make, remO\ability Ie" important and, cOIl\'('r~(''', m,.k(', late IIIIP(',\( hlll('lIt I el('\~lIl



t. .~('('

/!Ifia Part \'.A.

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Col. Mason withdrew ~maladminislJ"uch as the fact that Hastings was out of oflice-were seen as unacceptable, it would be surprising if Mason would have used it as an example of a good impeachment and e\'ell more surprising if this attracted no dissent. Conversely, if the Hastings case was seen as an appropriate model, the fact that Hastings was out of office surely must have registered, More generally, in defining impeachable offenses :-'lasol1 moved away from the American "maladministration" standard"-' 132. 2 RECORDS, supra no Ie 112, al 550 (,'mph;L,i, added) (loOIIIUI" omllled) 133. E"en an opponelll of lale impeachlll<'llI cOllce(kd g"II<'r.luon, 1.11"1 Ih.lI Hastings's "case was presellllO all minds. and was debaled b\ all hp'.- lIuJ-.'\!' rRl\l. supra note 18, at 98 (opinion of SenalOr Howl'); srr (/1.0 Arthllr 1I",wl. Imprl/dJtllrtll, ·1'1 WASH. L. REv. 255, 284 (1973) (book n.·\;ew) (-A" Ih,' plopo",d Con-lIlllllon \\('!II before the ratifying cOIl\"elllions of Ih,' sewr.11 Anl<'l;Call '1;11," III 17SS. Iht' m",1 spectacular impeach men I lrial of Ihe age gOI under \\~I\ III Ihl' Iluu,,' of l.ol (b.-I Reference was made 10 Haslings in Ihe Firsl Congn· ....' .l> ,,<"II. .11 \\ hl( h POUIl tiu' proceedings were still ongoing; il \\'L, ml'llliun,'d IInl;I\()!~lbh .L' all '''"unpl,' 01 ho\\ ,10\\ impeachment trials could be. I A.\::-\Al.'> OF CO:-'{;. :17:~ (l7H9) !-I.II,'III"III 01 R,'p Vining). 134. Then again, maybe knowledge 01 H;L'linh'~;' C.L"· \\.L, 'p.HI\ III Ih,' '\t'\\ ,,"odd After alI, one of the charges a)f \\'L~ for brib"J"\ (though nUl 1.II)(,lt-d .l' 'III h in the articles of impeachment), srI' gt'1/l'm/{\" John T. "oonan . ./1 .. /1". IJn/Jn) ul \lim..,. Hasti7lgs: The Setti7lg of (/ Sta7ldard for 17ltl'g71ly /II Adll//IIB/mlltJII. 10 I hlF'! It \ I. Rn 107'~ (1982), a fact that undermines Mason's "!IIirl' argIlUl"!ll .lbOlIl bro.ld,'mng th,' h'l of impeachable offenses so as 10 ensure Ihl' inrillsion 01 C;L\l', hl.,' II.l,lIng'·' 135. Mosl state conslimtions used Ihi, fonllul.llron . .\a "'Pili 1'''101 .It (ornp.!II\III)( notes 74-89.

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to the English "high crimes and misdemeanors" standard. II" American federal impeachment was thus placed squarely in the context of the English experience, where not just high crimes and misdemeanors but late impeachment were the order or m business. d. Late Adjustments Late in the convention, the provision for removing the President was expanded to make clear that he was not the only official subject to impeachment. To the provision for removing the President upon impeachment and conviction, the convention simply added the Vice President and civil ollicers to the list unanimously and without debate. II" This late change ended the distinction in the text between the genl'l'al impeachment power and its specific application to presidential removal. It is also the source of the poor construction of Article II, Section 4.1:\9 One last item implicitly raised the issue of late impeachment. and at first glance it might seem to suggest that it was Itot intended. On September 14, John Rutledge and Gouverneur Morris proposed to suspend impeached officers pending their . I an d acqmtta . I . I III Th'IS proposa, I wh'IC I1 was reJectec. . I III tna suggests that impeachment was for sitting officers only. As with the earlier discussions on impeachment. though, it appears that this simply reflected the importance of removability to the Framers. It was not necessarily the case that all impeachments would involve sitting officers; Rutledge and Morris simply wanted to consider suspension as a remedy for those that did.

See BERGER, supra note 29, at 59-73 (describing Engli~h lise of "high ( I illl(" .lIId concept). 137. See sujJra text accompanying notes 52-5H. 13H. 2 RI-.CORDS. wpm note 112. at 546. 552. 139. The late impeachment dilemma i~ not the onl} one' neated hy th" ,lo!,!,1 craftsmanship-the Framers also neglected to provide explicitly for ~on1('OJl(' otl1(" th.11I the Vice President to preside over an impeachment trial of the Vice Prl'~idl'lIt. ,\rr./oel K. Goldstein, Call lile \'ICe Presitil'1l1 Presu/e at fit> OW" Impearillllmt Trllli?: II Cn/lque 0/11111/' Texlua/;"'III. 44 ST. LOl"lS C. Lj. 849 (2000) (arglling agaimt the •• bllit} of the' \'" (. President to preside over his oIVn impeachment trial); s/'e {lilo K;.lt, IIljmlnotl' I:~ ..It 7W,96 (dj~cllssing incongruity of Vice President pr('~idiIlg on-r hi~ OWII impe •• dlllll·lIt tn.ti). 140. 2 RE< ORDS, sujJT(l note 112. at 612. 141. Id,at612-13. 136.

misdemeanor~ -

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e, Conclusion Quite a bit about impeachment went without saying in the debates, and the fact that something as admittedly peripheral as late impeachment was one of them should not be surprising, Nevertheless, the mention of Hastings and the debate on whether the President should be removable "whilst in office" provides some evidence for the notion that late impeachabilit), was a given and that "regular" impeachment (for the President at least) was the controversial question, Regardless of what the Framers knew or thought of the Hastings case, they clearly gave Congress a more restricted impeachment power than that possessed by Parliament. One can argue that when the Framers meant to eliminate an impeachment power from the English baseline, they did so explicitly,142 Conversely, when tl1ey were not explicit-as with late impeachment-they must not have intended such a limit. If the British could impeach Hastings after he had left oflice, this argument would go, so too could the Americans impeach an exofficer, in the absence of a constitutional statement to the contrary, 2,Ratification Further insight on the original understanding of late impeachment can be gleaned from ratification sources, nIl' Federalist Papers present neitl1er direct evidence about the 142. See, e.g., BELK.'IAP TRL-\L, supra note 18, at 87 (opllllon of St'Il.ltOl Sh"nnall) ("The preceden15 of impeach me III of persons not in olin' for offell"'" ("Olllllllll"d "1111,, in office were well kno\\n, and if this had been considered an .lbIL'l' lO I)(' guard"d against it would have been done in the same clear manner that the ComlHullolI gu.mb against excessive punishment in cases of impeachml'lll."): td. at 129 (opilllOn "r St'II.Huf Bayard) (cataloguing explicit changes in Constitution a"~\\ from ElIgli'h pr.tcun' .lIul not including prohibiting late impeachmelll). These explicit changes include: the two-thirds m:tiorit\' n'quirl'ml'lll 101 nlllnnlOn: limitation ofimpeachment to high crimes and misdl'nll'allo("S by ("i\,1 olin'f>. bUI ' .... Pan IV.B.I; the limitation on presidelllial pardons to pn'\'('1ll their 1I'l' \U lind" .111 impeachment judgment; and the limitation 011 pllnishllll'lll to Il'lIIm';ll .lIul disqualification. On a separate note, English impeachmelll procedlln-s werl' bJ(lIIghl IIIto AIII"nc.1II practice as a baseline when Senate Presidelll Thomas Jefferson in("o'l)()r.Hed th"lII IlllO his manual. SeeTHO~L-\SJEFFERSO:-;, A MA:-tlll" adoption of it).

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original understanding of late impeachment, nor lIluch valid basis for inference. There are, however, some invalid bases that bear mention given the prominence of Till' Fnipmlisl as a SOUtH' for deciphering original understanding. The first discussion of impeachment in Till' Fedpmlislmentions late impeachment explicitly but does not discuss whether it is possible under the federal Constitution. In TlIP Fnlrmlisl N, James Madison compared the republican character or the proposed constitutional government with those in the states. I Ie wrote: In several of the States, however, no explicit provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any tillle during his continuance in office. II I

Taken out of context, Madison's statement that the President "is impeachable at any time during his continuance in office" would seem to rule out late impeachment. But Madison was not speaking of the limits of the federal impeachment power; rather, he was speaking of its expansion. Unlike certain states where the governor cannot be impeached at all or can only be impeached after he leaves, Madison explained, the Presidellt 1 can be impeached while he is in of1ice." Later, Alexalldn Hamilton made the identical point, noting that "IT II\(' President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Virginia and Delaware.""·· Ol1e call debate whether a President who is only impeachable while in offin' i.., "on worse ground" than one who can only be impeached aftet leaving office-Hamilton may have been supporting the idea or late impeachability. At worst, though, late impeachlllent was simply beside the point to Madison and Hamilton and not ruled out. The only other potentially relevant discussions of impeachment in TIll' F'pdpralisl concerned removability, alld so, as


TIlE FEDER.\U',I ;\io.



39. at




({ :tinton R""\tel ed .. I~lIi I)

IIllml Part I11.C.l.h (di,clI"ing n'lIl()\ahiht) 01 PIt',idenl. IIl1phlll/( III, 1"11'

illlpeachahliity) . 14:;. Tilt FEmR.\I.I~1 :'\0.69. al 'IHi (AIt-',lIIder lI,uniltoll) (elilltoll



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in several debates in the cOl1\·ention,H•. f(>cused ciisproportionately on the impeachment of sitting oflicers. H~ As before, the fact that "regular" impeachment was more likely and more important-and that the discussion of impeachment reflects that fact--does nothing to rule out the possibility 0/ late impeachment. Impeachment was also discussed by opponents of ratificatioll in the loosely organized canon known as the :\Tl/;-Fnirra/i.\/ Papers. Here too, late impeachment was not addressed, but some inferences are available. As in The Federalist, at least one anti-Federalist author discussed the removability of the President in terms that might seem to crowd out late impeachment-if read out of context. Luther Martin (who was a convention delegate, but who walkt·c\ out and refused to sign the final document) ol~jected that the Constitution made it too hard to remove the Presidellt via impeachment, gIven the likely contours of congressional J48 politics. This would not be a problem if late impeachment were possible; the presidential leverage over Congress that Martin worried about would be mooted once the President left office. Thus, one might conclude that ivlartin did not think that late impeachment was possible; if he did. he would not have complained so stridently. But Martin was not thinking in such subtle terms. Martin was concerned that the President would be "a King in name, as well as in substance," who could ~establish himself in office not only for his own life, but even if he chooses. to have that authority perpetuated to his hUllily. """ ~Iartin dismissed impeachment as irrelevant, because the Pre.,ident could "set [it] at defiance. "I'" This would be so for late impeachment too, if the President never left ollict'. :\.., with Hamilton and Madison, then, for Martin the timing of impeachment was beside tlle point. In the actual state convention debates on ratification, impeachment was raised as an issue on several occasions, but again late impeachment was not addressed directly. 146. See supra text accompanying nOll' 12:~. 147. See, e.g., THE FEDERAl.ISr No. 77. al .J(}.J (,\I,·\..III
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One concern about impeachment among opponents of the Constitution was that the Senate was established as the tribunal for trial. Relatedly, many debaters assumed that senators themselves were civil officers, subject to impeachment. For instance, John Brooks expounded at the Massachusetts ratifying convention as follows: When men are answerable, and within the- reach of responsibility, they cannot forget that their political existence depends upon their good behavior. The Senate can frame no law but by consent of the Representatives, and is answerable to that house for its conduct. If that conduct excites sllspicion. they are to be impeached, punished, (or prevented from holding any office, which is great punishment.) 1-.1

Brooks supported the impeachability of senators, in other words, and understood impeachment as being about much more than just removal. Apropos of late impeachment, Brooks understood removal, disqualification, or any combination thereof as a threat to one's political existence, a threat that provided proper incentives for "good behavior."I-.t Once again. we see impeachment conceived as a way to guarantee propriety in office-a goal to which late impeachment would contributerather than simply to remove malefactors from office_ An exchange at the North Carolina ratifying convention contained language that implicated late impeachment. In the context of a discussion of who was su~ject to impeachment. delegates puzzled over the Constitution's vague language and worried that slate officers and even private citizens migh t he 1 susceptible to impeachment- I-.: Governor Samuel Johnston rejected this notion, stating: "Removal from office is the punishment-to which is added future disqualification. Ilow could a man be removed from office who had no office?"I'" Johnston's interpretation would seem to preclude late impeachment- If removal is a necessary element of punishment. !:, I. 2 TilE DmA n:s I, I liE SEn-RAL 51.\ H Co,n::-. I IO:-'~ 0:-' I m A!lOI'I IO' Of I I II FEIJER,\L CO'SIITlHO, 45 (jorl.lthan Elliot ("d., 2d ("d. IH:~6) [h("l("in.titt'1 «,J II()I'~ DEliA n:s I;

'PI' (/[,0 2 uf. at I fill-69 (r('cording 5amllel Stillman maklllg t ht' "\1111' 1'00nl) One can rt·;td-bllt ,hollid not n·.ld too lillich-into 111001.,', 1"(' of tht' WOld "or: illlpl~illg that disqllalificatlOn alollt' W.I' .1 po"iblt- pIIIli,hnll'llt (." 11 wOllld nl'cl'ssarily be in a late impeachml'llt case). 153. Sn' 4 EU.lOT·S D~ 11,\ IFS, 5ll/mlllotl' 151. at :~2-:H. 154. 4 ul. at 33; 5pr "l5O

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then how could an ex-officer be impeached? But Johnston's comment seems to be directed more at dispelling thc notion that ordinary citizens could be impeached than at discussing the acceptable timing of impeachment u·ials. Late impeachmcnt does not present the problem of pursuing an individual who "had no office," and thus does not really conflict with Johnston's underlying interpretation. I ,., Finally, another comment at the North Carolina convcntion further reinforces that impeachment was designed not simply for removal, but as a way of promoting accountability in office. Framer, Ratifier, and later U.S. Supreme Court Justice James Iredell stated: [Impeachment] will be not only the means of punishing misconduct, but it will prevl'nt misconduct. A man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishmeIll will perhaps dewr . 156 h 1m.

Iredell's statement is perhaps the clearest one by a Framcr that impeachment is intended as a structural incentive for excclltive and judicial officials to behave. As will be discussed furthcr below, in the argument from constitutional structurc, latc impeachment is an important component of this function"~7 Because the impeachment process is so cumbersome, it is only with late impeachment that the inccntivc effccts of impeachment extend to the later portions of an cxccutivc officer's term. vVithout late impeachment, as h'cdcll puts it, there is effectively "no tribunal to punish" such a malfcasing officer, who would then be all too "ready to dc\;atc from his duty."I58

155. Other comments may ha\'c rcflcctcd vicws on I;ue illlpeachlllelll. but uot necessarily. See, e.g., 3 id. at 516 (recordingJames Madison at \,iI1,'luia coll\ellliou. ,t;1I1ug that a criminal Presidcnt in Icaguc \\;th senators would ,till b,' \llluerabll' to impeachment, as one-third of the Scnate tunled over even' t\\·o \,ear.). It ." 11I1I:Il'ar whether Madison was refcning to impcachment after the i'r,,,,idelll" tenn l'udl'd, or simply impeachment during thc Presidcnt's term after uew s,·uator. \,','r,' l'il'nl'd. 156. 4 Uf. at 32 (emphasis addcd). 15i. See infra Part V.A. 158. Although the criminal law prO\;des additional iuCt'ulI\l", lIupeacilllll'ut ('mer> offenses that may full short of criminal \\Tongdoing or thai are too poliucal for the ordinary judicial process to handlc appropriateh·. Imp"adunelll .Il", pwnd ...

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D. The Argument from History

Impeachment in 1787 meant pursuing public offenses committed by public officials. Private citizens were exempt from such inquiries-except to the extent that they had bl'en public offenders who had since left office. There was clear precedent for late impeachments in America and an even clearer one in England. Several states made clear that late impeachments were preferred or even required, and no states specifically barred them. If regular impeachments were more common than late impeachmenL<; in America, it was only because they were more worthwhile, not because they were the only way to proceed. American impeachment was designed not solely to remove misbehaving officers, but to provide incentives against their misbehavior in the first place, a goal for which late impeachment provides essential support. When the Constitution was debated, drafted, and debated again, this tradition of late impeachment was not addressed head on. Several other limits were placed on impeachment, however. Another one-preventing impeachment of the President "whilst in office" and presupposing his late impeachability-was almost adopted as well. But no provision on late impeachment was introduced, suggesting that it was not part of the historical baggage of the word "impeachment" that the Constitution took pains to shed. IV. TEXT The text of the Constitution places several significant limits on the impeachment power, but it neither explicitly authorizes [lor explicitly forbids late impeachments. Indeed, read over-literally, it does not even limit impeachment to civil officers, let alone sitting officers. 1-." But regardless of whether impeachment is limited to civil officers or is not limited at all, the text of the Constitution does not foreclose the possibility of late impeachment. The textual argument against late impeachment is a defensible one, to be sure, but it is not the best in terpretation of the text. p"nbhmenL' that the criminal law does not. Srr III/Ill note' 2:F, ,lIul '.!.71 .\IId accompanying text. 159. For cOIl\'enience. the term "civil oflicers- i~ lI'ed here to ,('\(" not III~t to federal civil omcer~ but aho the Vice President ,\lid the President. S""
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A. Everything but Article II, Sl'ctioll -I

The Constitution establishes tllat the House and Senate have the main responsibility for construing the breadth of their own impeachment powers, They are given the sole powers to , h l60 an d to try Impeac ' Ilments, 1"1 an d tl ley are aI Impeac so ' gl\'en the authority to make their own rules for their proceedings,l.:! Because the Constitution commits tllese matters to their discretion, their determinations generally are not susceptible to judicial review,l63 Further strengtllening Congress's dominion, the President's otherwise plenary power to pardon is void with regard to impeachments, 1M The Constitution does, however, provide some specific limits on the impeachment power in Article I, Section 3: The Senate must sit on oath or affirmation; tlle Chief Justice presides when the President is tried; a two-thirds m<~jority is required for conviction; and the outer limit of tlle Senate's sentence upon conviction is removal plus disqualification from holding oflice,h.·, 160, U.S. CONSf. art. I, § 2, d. 5. 161. Id. § 3, cl. 6. 162. Id. § 5, cl. 2. 163. Nixon v. United States, 506 L'.S. 224, 234 (l99:~) (-['nh,' Jllthn.ln, .lIld th,' Supreme Coun in particular, were nOI chosen to han' all\ rol,' in IInp";Ichlll,'n~,-); .rr also id. at 253-54 (Souter, j., concurring) (-If the S,'nat" w,'n' (0 , , , nllmn [ J, ...1" upon a coin toss, or upon a summar), determination thaI .1Il ollin'r of Ihl' t'lIItl'd St;lIl"> was simply a 'bad guy,' judicial interference mighl wdl b,' appropnall',- (1II1t'm.II quotation marks and citation omilled». This is not to say that the House can impeach ;\II\OIll' it \\~lIll' .11 .1 "llIIn, II '1lIIph means that the House is the lead interprell'r of the COlhlillllion Oil tim 1...,Ul' , AII(l\\'III~ judicial review would not change the standard. it \\'ould jlL't .Idd .1 "'If"~lI.Ird b, .l(ldill~ another institutional interpreter of the standard. Bill flow bl'sid,,,, Ih,· ''YnK.11 '\OlIld ...1\ that with judicial review the House could impeach all\onl' Ihal th,' .\lIprnnr CUII,t \\~IIl~ II to impeach. Just as the Supreme Court wOllld be prt'Mlm,'d 10 .Ipph th,' Il'qllbll,' constitutional standard. so too is the HOlL~l' bOllnd b, til<' COII,II till 1<111 , rhl'rl' I', 01 course, a rich literature on the subject of non:jlldicial comtilllllollal 1Il1,'rprl't.lllol1 ''''''' e.g., MARK TUSHNET, TAKI:-IG HIE CO:-;SrI rlTIO:-; :\\\'\\' FRO\! lin COl RI'> (19!19); SA>"FORD LEVINSON, CONSfITl'TIO:-:AI. FAITII 27-:~0. :~7-5() (19SS) (d"linlll~ -c.llhoh,-- .lIId "protestant" approaches to imerpretiw authority); :'\l':l1 Knlllal K.II\~II, [.rgulllttt·.. Constitulio1UIi Interpretation, 50 Dl'KE LJ. 13:~5 (2001); ~Iirhad Sto!..,,, I':lnl.,..n. 'J1r.. ,\10.1 Dangerous Branch: Executive POlllrr to Sa)' II'hlll IIII' /"a", [1, S:~ CHI, 1.J. 217 (I 99'1J /Jut.rr Larry Alexander & Frederick Schauer, 0" Exlrajlll/lrln/ C",,,tlfllt""1II1 ["tnp,YIIII"'", Ilu HARv. L. REv. 1359 (1997) (arguing in fa\'or of judicial Sllpn'III:1('\ ), 164. See supra texl accompanying notel:~; "'Ira Il'XI accolllp.III\ 1Il~ 1101" :.1ti:.1 /Jilt ll'r KaIt, supra note 13, at 790-93 (posllliating other limitation. Oil Ih,' p.mioll po" .. ! I 165. U.S. CaNST. art. I. !i 3, cis. 6-7. \\,hik n'mo\~II I, 1II.lIId:l1U1'\ (II .Ippl ....lbl,·1 upon con\iction, disqualification is not; Ihe {)\'er\\'h"'nlln~ lIIaJonl' 01 ,,'IIIl'IIC<" ul'(JII comiction have not included disqualification. S('(' "'1m IlOt,' :,2:.1, /Jilt ll'..- JOII.llh.1II I min, Smale Trials and Factional Disputl's: Impradllnl'III (/S a Mmil""'1Il11l O""Ia, ,19 DI hl 1..) I, 7:.1 11.349 (1999) (contending that -the fail un' 10 sel'!.. di~luahlir,lIIol1 '\ lilt .1 1l'1II""t1 I'

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It also provides some limitations elsewhere, in Articlc II, Section 4, which will receive separate consideration below. 1M. Another limit that the Constitution places is that impeachments must be "impeachments," a point that is no less important for being obvious. If the word "impeachmcnt" connotes something limited-i.e., if only certain actions call occur within the true meaning of the word "impeachment"then the reach of the congressional impeachment power is lh similarly limited. ' An analogous if extreme example may make this point better. Congress can grant letters of marque and reprisal,If'" but it cannot grant titles of nobility. I"" A letter of marque and reprisal is a document that gives permission to a private citizen to outfit 17 a warship and plunder the ships of foreign enemies. " The Constitution does not offer this definition, but the term "letter of marque and reprisal" had a meaning and a context in 17H7, such that the power granted by the Constitution to Congress ill this regard was specific and limited.I'1 Congress cannot simply name you a hereditary Baron, label the appointment a letter or marque and reprisal, and declare that Baron is not a title or nobility. The point is not that the Constitution defines the terms "title of nobility" and "marque and reprisal"-it does not. The conceptuall) difficult to under~tand"). Furthermore. once a twO·thl1d~ malollty h.l~ heell obtained for com'inion, only a simple m.!jority i~ required to dbqu.lhlr the deft-nd.1111. Srr Bl·~II,\~.I.L. slI/Jra note 16. at 239 (de~cribing thirtr-nim' to Ilmty-live \ott' disqualified Judge Robert Archbald); Irr a/5o G~.RII,\R[) I, III/Jla 1I0tt' 12 .• It 7i{.7!) (notlllg Senate practice of requiring only a majority lor di~qualilication hut .ugllmg two· thirds should be required). 166. Srr il/fm Part IV.B. 167. Sa Gibbons v. Ogden. 22 l·.S. (9 WheaL) I, IH9 ("[ 0 1m wmtitlltion he111g .•1' wa., aptly said at the bar, one of enumenltlOlI. and not of definitIOn. to .1'ct·1 t.lln the extent of the power, it becomes necessary to ~ettle the meaning 01 the word."); ){,\\\ I ~, HI/1m note 35, at 210 ("Impeachmenl~ are Ihus introdllced as a known ddinitt, 1('1111 •• ul(l we mll~t han' recollrse to the commol/ (aw of HI/g{m,,{ for a definition 01 the111.'·); If. 111/", note 351 and accompanying (ex I. Admittedly, legal realist and then-I 1011'(' Minolll\ Leader Gerald Ford put it, an "impeachable offeme i~ whalever a majorilY of Ihe 1101I,t, of Repre~entatives con~iders to be at a given mOIlH'nt ill hiMory." Ilti CO;\l( .. RH . II," 1:1 (1970) (stalement of Rep. Ford). But the Iioll'e (and Ihe Senale) h.I~.1 dill,· 10 1001 11' "considerations" in the COnS(illltion. alld hislorically il has done 'I'. 16H. l' .S. Co,\s·!. art. I, ~ H, cL I L 169. frl. ~ 9, cL H. 170. Srr gmrm{Zl' Charles A. l.ofgren, lI'm·Maklllg (llIda /lIP (;01l\/lIl1llOlI: nil" ()"K/1/(/1 ['l/dffS/lIlIdillg, HI Y,\I.E I.J. 672. 692-96 (1972). BII/ ,pp gmrmllyJult" I.ohel. "1,,1/['- 1\,11\" alld /!lp COllsll/II/IOII, 50 l'. ~\'IIA~II 1.. REV. 61. 67·69 (1995) (arguing lo( hroadt"1 dclillllll>ll of marque and reprisal a~ embod\"ing tht" conct"pl or impt"rit"cl war). 171. For thost" who disfavor looking to Iht" original Ilndt'I'landlllg. ''It'lIt'l 01 marque" has the ~ame mt"aning today . .

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point, rather, is that a "letter of marque and reprisal" is what it is and nothing more. The limits of the meaning of the tenll "marque and reprisal" represent congruent limits on the power actually given to Congress to grant the letters. There is a sound basis for attributing a limited definition to the word "impeachment" in the United States in 1787, namely that it comprehended only proceedings conceming public l officials' conduct of their jobs. 7:! Put another way, if the House were to try to impeach me, a private citizen, for stealing oflice supplies from the private law school where I teach, its action would be as void as your baronage. As a House manager put it in an actual late impeachment trial, "[T] he jurisdiction of the Senate by the very naming of impeachment per se is confined to official crimes."m A congressional prosecution of a private citizen simply would not be an "impeacluneI1l. "I~' At first glance, the English precedents might seem to suggest othenvise, because English impeachment technically was not limited to public offenses or public ofTenders.I~·. But the impeachment of peers for private misconduct was b'Lo;eci on the fact that the ordinary courts were not equipped to try such significant defendants.I~6 In the United States, with no nobility, this form of impeachment did not u'Ulslate. As for the impeachment of commoners, in practice this at least was limited to state offenses-the domain of Parliament-and had in any case fallen into desuetude long before 1787.177 Though English impeachment evolved to include these limits, American impeachment included them all along. Private citizens were pursued through the regular criminal process or through attainder, but not through impeachment.I~" When the newly independent states wrote their constitutions, they made 172. "Impeachment" certainly had such a limiled connol'llion once Ihc Constitution became well eslablished. bill Ihis simph ccOl'ell> Ihl' IIIllucncc of subsequent interprelation, a son of lexlUal boOlslcap Ihal doo nOl a(h~lIIcc !lIt. argumenL See, e.g., Slate v. Hill. 55 N.\\'. 794. 796 (Nl.'b. 189:~) (-Hl.'rl.' nonc bUI public officers are subject to impeachment."); 2 STORY, supra nOll' 42. al 2:n (-Thc o[kllcn. 10 which the power of impeachment has been. and is ordinarih' applil·d. ,I!> .1 ccmc(h. arc of a political character."j. 173. BEl.Kl'lAPTRL-\l., supra note IS. al 54. 174. This is so regardless of whal Artick II. li 4 h,l!> 10 S;I\ aboul who l~1II bc impeached and for what. See infra Pan IV.B. 175. See supra text accompanying nOll' 3S. 176. See supra text accompan)ing nOle 40. 177. See supra note 47 and accompan)ing II.'XI. 178. See supra text accompan)ing noll' 61.

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this limitation on impeachment clear."" The single exception to this was that former public officials-technically private citiJ:ens at the time of trial-were impeached for prior public actions. I"" By 17R7, then, "impeachment" had come to mean a process for the legislature to inquire into and prosecute public offenses committed by public officials. If the federal constitutional provisions on impeachmellt discussed above had been the only ones written into the federal Constitution, it would be much clearer that late impeachment is allowed. Even those who aclhere to a wholly literalist reading of the Constitution devoid of context would concede that, other than explicit limits specified in the text, the congressional impeachment power is as broad as the word "impeachment" itself. While the definition of impeachment can be restricted to exclude private offenses and private offenders, there is nothing inherent in the notion of impeachment that requires the process to begin or conclucle while the defendant is .\till a public official. B. Articlf II, Sfrtion 4

There IS, of course, one other significant clause 011 impeachment in the Constitution, Article II, Section 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Oftice on Impeachment for, alld Conviction of, Treason, Bribery. or other high Crimes and Misdemeanors."lxl This clause has been interpreted !;lirly decisively as limiting the impeachment power further, so that it reaches only civil officers and only high crimes and misdemeanors. Because some have construed the limitation to "civil officers" additionally as restnctmg the timing of impeachment, Article II, Section 4. plays a uniquely important part in the interpretation oflate impeachment. I. The Over-Literal Reading: Helpful but Wrong This limiting construction is not the only one possible for Article II, Section 4. Another reading of the provision-which I will concede has been soundly rejected, even though it would III.B.2.


Sff' I/I/ml Pan



IT.s. Co, ~ I. alt. II. :i .1.

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make the case for late impeachment a slam dunk-is the overliteral one. Under this reading: The Constitution does not undertake to definc the nature and fonn of impeachment, or its scope and boundaries. . . . [T]he House of Representatives may impeach for other offenses, abuses, failures, and wrongs than thosc included in the tenns "treason, bribery, and othcr high C1imcs and misdemeanors." [I]t may impeach othcr partics than the "President, Vice President, and other civil ofiiccrs of the United States."182

The basis of this argument is that Article II, Section -l provides on its face only a mandatory sentence: if a civil oflicer is impeached and convicted of a high crime or misdemeanor, he must be removed. It does not say that onZ), civil oflicers can be impeached. It does not say that impeachment can ollZy be for high crimes or misdemeanors. It says one thing, and one thing alone: if the party is a civil officer, and if the charge is it high crime or misdemeanor, then conviction requires removal. In other words, Congress can aiso pursue non-oflicers, non-high crimes, or both at once, and can either remove the convict in such cases or not. Under such a limited interpretation of Article II, Section 4, late impeachment is obviously within the power of Congress-as is the impeachment ofjaywalkers or f~unil)' pets. I!\5 Such an approach-parsing the text of a clause in isolation from the rest of the Constitution, oblivious to the general context and larger structure of the document-commits the error described by Laurence Tribe as misL:"1king a gap in a map for a hole in the space it describes. 1M Impeachment has a context and a meaning deeper than that yielded by wooden, out-of-context readings of constitutional clauses. A better practice is to reason based on broader textual clues, structure, 182. BEL&'1APTruAL, supra note 18. at 146 (opiuion of Senator IU·\ I, 183. This debate most recently empted O\'er till" CliulOu illlpeachlllelll. III \\'Illch some commentators argued t1lat impeac\lIuent uet"d uol be for high cnllln .lIId misdemeanors. E.g.,Joseph lseubergh, Impradllnml alld Pmldml/(/llrnllllltlll) from j1ll11Clt11 Process, 29 YALE L & POL 'y REv. 53, 62·77 (1999) (a'1,,'lIing Ihal Anic\l· 11. li ·1 don nOI define impeachable offenses, but merely requir~"S Ihe n·IIlO\'al frolll "fIire of Ihe ,I.lled class upon conviction of various serious offensl"S). Tho>l' who 1U01.. all...., hll·r.1I \1l"\' or Article II, Section 4, such as Professor Akhil Amar. offered Ihe ja\'>';lll..lIlg- ",,'ell.lnll .~ rebuttal. Akhil Reed Amar, 011 Irnpendlillg PTl'sidl'1lis, 28 HOFSI1{A 1.. RE\'. 291. :~23 ( 19')

(199:, I,

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context, and history and to deduce what must fill the space that the map has failed to describe. To be fair, the over-literalist argument sketched out above is something of a straw man (with due respect intended to those who actually subscribe to it) constructed by those who oppose late impeachment. Such opponents have argued that if Article II, Section 4 allowed for late impeachment, it would not ofler any limits at all on impeachment; therefore, late impeachment must not be allowed. 18:; But this syllogism is not valid. Even if Article II, Section 4 does not limit impeachment to civil offiens. neither does it authorize Congress to impeach offenders who never served in office. As discussed above, the impeachment power is inherently limited by the bounds of the definition of the term "impeachment" itself, and these bounds do not include impeaching wholly private citizens.l"b They do, however. include late impeachment. Therefore, while the over-literalist argument is too unpopular an interpretation on which to rest the case for late impeachment, one should reject the reductio (ul abSllrdll1ll argument leveled against it by the opponents of late impeachment. The parade of horribles marshaled by the overliteralists is in reality a short one, including as potential additional targets for impeachment only members of Congress and perhaps state officials but not people who have never been in office. There are structural and precedential reasons to exclude members of Congress and state oflicials from the domain of federal impeachment;I"; moreover, one who starts with the literalist reading but is not averse to using other interpretive tools can limit impeachment to "civil officers" without using Article II, Section 4 and without implying a limitation on the timing of proceedings that would exclude late . h ment. 1M lmpeac

185. See supra text accompanying note 2:1. 186. See wpra text accompanying notes Itii-80. 18i. Although the federal Constitution doe~ comtrain .,tate offici.ll, ." well .1' federal ones, these constrainl~ arc few and very specific (e.K.• the 1111111, 011 '1.lit' governments in Article I, ~ 10; the oath requirement in Artide VI. ~ :1). Re~'lIdlll~ members of Congress, see ill/ra note 19i. 188. A lingering problem with such a reading is thai il would 1101 hnlll 11111)(,.1<'11.1"1(' offenses to high crimes and misdemeanors. To be ~lIre. this i~ 1I0t whollv IIl11l'a,oll.I"k, gi\'en the implication in Article III. ~ I that judges can be impeached lor mel(' 1.11"1" III "beha\;or- that rail short of high misdemeanors, COllgre,s has ~('t'med 10 applv 1111' 10WI'I

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2. The Expressio Unius Reading: Four Possible Interpretations In any case, Article II, Section 4 does limit impeachment to l89 civil officers. More precisely, it has been used to limit impeachment to civil officers. The over-literalists are correct that there are no explicit limits in the text, and their critics are often guilty of citing Article II, Section 4 as if the text clearly says l90 something that it does not. The limiting effect of Article II, Section 4 is based on one of two contemporaneous understandings of the clause, which was subsequently adopted 191 by Congress and scholars. This understanding takes Article II, r Section 4 as a sort of expressio ulliusl • ! description of impeachment that mentions who can be impeached and for what, and that implicitly excludes any otller subjects not listed:'" Congress's very first impeachment case reached this issue"'" and with the passage of years it has largely become settled,I"" though

standard to judges, though it has purported to use the "high crimt~ and nmdl"ml".ultll'>" standard in each case. Sa infra note 198. 189. The Blount case is taken as settling this matter. Sri" ",/m nute :iOO; lU IIlw ~ STORY, supra note 42, at 257-64 (noting Blount prt·cedt·nt .n\(\ dl"danng th;u impeachment is limited to civil officers and high crimes and miMil"ml"anurs). The term "civil officer" is used here to indud .. the President and \'jce I'rnldent. .'i<-.. supra note 17. 190. See, e.g., Ronald D. Rotunda, All Essay Oil /,,~ COIu/llu/wllal I'"rnlllr/rn u/ Frllrml Impeachment, 76 KY. LJ. 707, 715 & n.37 (1988) (citing unly Artide n, § 4 fur prop'l>itiun that "[tlhe Constitution limits the impeachment power to 'all chil Officl"r" of lhl" l'1II1t·d States'"); 2 STORY, supra note 42, at 255-57 (discussing samd. 191. James Wilson, Framer and original Suprenw Coun JU"lICl', ,lth~lIIced IIIl> interpretation. 1 JA.\IES\, supra nOll' 43, al 4~6 ("In lhe l'nul"d SI.lln . impeachments are confined 10 polilical char.ICler'>, to puliliGl1 crimn ,lIId misdemeanors, and to political punishments. TIle presidenl, ';Cl" prl"sidl"lll, allll .111 CI\11 officers of the United States . . . are liable to impeachmelll . . . . -j. Prof...."".,r Akllll Reed Amar surveys this and other similar slatemenl:> by Fr.lml"l'> and lhl" ",hu!;lrh consensus in Amar, supra note 183, at 333-34. 192. The full phrase is expTl'ssio limIts ~s/ excl.tslO "I/mll.>: 10 expliclll\' 1lIl"II11UII UIII" thing is to (implicitly) exclude otllers. 193. Amar, supra note 183, at 332 ("[Tlhe maillslream \;ew hold,. lhal (1)\ I"xpr..,."lu unius) Article II protects private citizens from impeachmt'lll; alld hl"rl" Amell" II h.l'worked perfectly, confirming many Founding Slatt'lllt'lIl:> lhal illlpeachllll"lIl \\,l'- IUlIlll"d to 'officers.'"). 194. See irifra Part VIAl. 195. See supra note 189.

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some scholars still disagree, I'''. and others offer a few suhlle distinctions. I!>. The expressio unzus VIew further notes that Article II, Section 4's discussion of impeachment-covering civil officers who commit high crimes and misdemeanors, and who are removed if convicted-is the only place that the Constitution addresses

196. For an entertaining exchange on the ~ubjecl-not limiled 10 dbnl,,-,ion of "'/'" can be impeached but also for what they can be impeached-st"{· the ('xcllange between Professor Akhil Reed Amar of Yale Law School and Stuart Taylol .lr. of the N,llion,t1 Journal in Amar, 51lpranote 183, a1317-41. 197. My own \~ew of impeachabilily and Ill(' definilion of impearh'lhle ollt'nst" " that !i 4 gives the impeachment siandard only for execullve ofli< ers and Ieave~ I elllt)\',11 in Ihe legislati\e and judicial branches 10 Ihe Expulsion and Cood Ikh,lvi", (:I,n"e' respectivefy, See U.S, CO:-;ST. art. I, !i 5. cl. 2; 1(1. al art. III, !i I. This view of Article II. !i 4 makes the following textual and struclural ca~e: Congll'" can pursue any public offense by a public oflicial; anything d~e would not he ,In "impeachment." See sllpra note 167 and accompanying text. There are Ihree Ivpe' of oflicials thai might be sul~ect to Ihis sort of a,,-,ault: it"gislalive, executive. ,\lid Judit 1.11 Legislative oflicials are subject 10 expubion. not impeachmenl. hUI Ih" m,lI-.t·, \('n\(' given thaI (I) expulsion is ~pecified in Ihe Comtitution. U.S. CO:-;SI. art. I. !i :'. t I. 2; (2) expulsion requires a Iwo·thirds vote in Ihe expelling houw. whirh replt'\('nl' .1 'hghlh diffel·ent. bUI nol appreciahly lower consensu~ Ihan impeachmenl. vr 1(1.; .lIul (:~) wlllk the punishment via expulsion is more limited than Ihat for impeachmenl. Iht'II' " .1 sound basis fill' distingubhing between ~ingle elccled ollieials in largt· kgi,I.lli\'(' hod It·, on the one hand and lifetime-appointed judge" un-eJectcd cxeculi\'(' olliccls. ,\lid IIIl" natiol1all) powcrful Pre,ident and Vice Presidenl on the otht'l han(1. Srr (;HU IMUlI. jllIJl'{/ note 12. al 75-77 (di,cussing textual and Mrllctllral algum('nl, ,Igiunsl Ihe impeachabilil) of members of Congres.,); if- A Nalhc of Virginia (/.Imt·, ~Iollloe). Ob,n1lr,liolB 111'01/ Ihl' Propo,wl I'lfIl/ oj Fedl'ml (;mwmmmi. I1l I TII~, WRIIIN(;!'. ()~ .I,\~I~' ~IO:-;RO~. (Stanislaus Murra)' Hamilton ed., New York. C.I'. Putnam's SOli' 11<91<). available at http://prel> documcllt,/ a 1_2_:" 12.h 11111 ("The Senators having a power over their OWII melllber~. have Iht· I ighl of expllt-IOII. Why then should the~ be impeachable?"). Executive oflicials are subject to impeachment as dt'MTibed in Allicle II. ~ 'I. Thl" President, Vice President. and the nOIl-ell'cted. non·mililill) ollkc" of Ih(' ex('( UII\'(' branch can he impeached ror high crime, and mbdemeanors. If Ihey al t· (onvi( It'd. Ihn are remO\'ed and po~,ibly disqualified from fillure service a~ well. Althollgh ~ I ,ll'l'e,I" onl} to require a certain punishment upon a certain Iype of conviclion. Ihe .Iltelll.lli\(" " a complete lack of standard~. and so an o:pre"l0 IlIlII(' reading of Ihi' (1.1I1S(· i, appropriate. Article II. !i 4 i, mcanl 10 constrain notjllst Ihe t'xeCllliv(' olfi( e" ,"hje( I 10 it but tht' Congres., applying it as well. Judges (and here is where Ihis interprelalion ' TASSEL & FI"KEL~f.\:\. "'IITil note I. al 91-9:> (elt',cllhlllg case of Judge John Pickering. convicted ror "lOlal intoxication" among olht'l Ihlll~') Although the Senate ha~ purported to apply the Sillll(' 51anditrtl 01 high tl illl("\ .mel misdemeanors to judge,. and many commentalor~ belil"\(' Ihal Ihl" IlIgh crimes/misbehin;or distinction is nol constJllllionally ~ignilirant. il i, (11"al Ih,11 ,1Ie1gt·, have faced a lower threshold. SI'I' infra note 191<.

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such issues of scope. Therefore, this must be all there is. I'" In a sense, this reading views the silence about the scope of impeachment as implicitly adding tile words "The only way that impeachments go is that ... " before "[ t] he Presidellt, Vice President and all civil Officers of the United States, [arc 1 removed from Office on Impeachment for, and Conviction of. Treason, Bribery, or other high Crimes and Misdemeanors." It is of no moment that Article II, Section 4 only purports to provide a mandatory punishment and tllat it is set apart from the provisions in Article I that spell out and limit congressional impeachment power. I !'-' But let's get to the point. Even if this is "all there is" in the text-that is, that impeachment only applies to "ci"il oflicers"what does that necessarily tell us about the timing of impeachment? Very little. Indeed, it not only tells us very little about the timing of tile trial, it also says nothing about the timing of the offense. Thus, tllere are four possible versions of the scope of impeachment witllin tile expressio 1l7lillS reading:

198, See BEl.Kl"AP TRIAl., supra noll' 18, al 98 (opinion of Sl·11.I101 1I00,l" (-[ \\' Ie have not a suggestion as to who may bl' impeaclll'd, I 1Il\',e1f lilld Ih.1I III Ihl' 10111 th section, second article, and I can lind il nowhere l'Ise."); Ill. al 12:~ (opilllon 01 St-1I.lIor McMillan), Federal judges are also impliedly impeachabll' for IIlbbeha\;or. \,'Illch ....·l'lIl, 10 undermine this reading of Ihe c1ausl' ;L~ exclusive, This is espl'cialh' M) g1\l'lI Ih.1I Jlldgl'" are civil officers, See U,S, COl'sr. art. II, S 2. d, 2 ('Iatillg Ihal Ihl' I'n... idl'lII -,h.11I appoint. , . judges of the supreml' Court. and all ol},t'T OillCl'rs of thl' L'lIl1l'd SI.II<"-' (emphasis added); id, at arL Ill, § I (-The judges, both of Ihe ,uprellle ;lIId IIIlenor Courts, shall hold their OfficI'S during good Bl'Ila\iour , , , ,-) (elllph;I>" .uldl'd" Congress has not invoked the Good Beha\;or ClalL~l', and h;L' purpurted 10 .11'1''' Ih,' single standard of Article II, § 4 to judges, Many commentators belie\'e Ihal Ihere is onl' unilil·d 'landaI'd, ,....r. ',g.. (;~ RII \RIlI. supra note 12, at 83-86 (discussing this \;ew): jeff SessiulI' &: Alldrew Slgl"I, JUlluwl Independence: Did the ClintQIl Imprad/lnl'llt Trial EITJ(/l' IIIl' I'mlClpll'l. 29 Cl'\\II, L RH ,IS9, 512 (1999) (citing consensus, including Juslice SIO!"Y); Cass SlIl1>ll'lII. /III/>mt/,,"r. II" President, 147 U, PA. L REv, 279, 304 (1998) (-I do nol belie\(' Ih.lI tim .uglllll,·111 l ' com;ncing. judges may not bl' removed from OillCl' for bad beha\101; Ihl'\ 1I1.l\ he' removed only for high crimes and misdemeanors, -), Olhl'l"> do nOI. ....r. ~ r... Bt R(.~ R. supra note 29, at 122-80 (arguing for separ.lIe judicial rt'IIl()\~11 'Iand.ud); ,\IIl.lf, ",pm note 183, at 327 (expressing belief in separ.lIl' slandanb and l10lillg Ih;lI -[llhulIghlllll scholars are not of one mind onlhis poinl-), Either \\'ay, judges have undoubtedly been held to a IO\\'l'r ,I.llld.mi. I \,..,~ 1 &: FINKEDIAN, supra note I, al 8: Sunslein, supra. al :~O.J (-[IIIi-IOI' h;L'1I11.llIlhlglluI1,h converged on tile judgment Ihal Ihert· j,. a IOWl'r Ihrt',hold for JlIdg,'" Ih.1II Iu. presidents."). Given this hislorical realilY, and ),';\('11 Ih .. IIllxl·d COn'l'n'lb .ullung commentators, it is reasonable 10 conclude Ihal judge, an' lIldl·,·d held Iu .1 I"'\{'I standard, 199, See supra nOle 90,

,"'r" \,

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I. "Civil officer" limits the timing of both the offense and the trial. A person can only be impeached ir he was a civil officer when he committed the orrense and if he is currelltly a 2f (This "conservative" view desnibes every civil officer. convicted impeachment derendant to date.) 2. "Civil officer" limits the timing or the orrense but 1I0t the trial. A person can be impeached at any time, as long as he was a civil officer when he committed his ofrense. (The "late impeachment" view.) 3. "Civil officer" limits the timing of the trial but not the offense. A person can be impeached regardless of when the offense was committed, as long as he is currently a civil officer. (The Clinton/"Whitewater" view, or, 111 the spirit of bipartisanship, the Bush/"Iran-Contra" view.) 4. "Civil officer" limits neither the timing of the offellse 1I0r the trial. A person can be impeached at any time, regardless or when his offense was committed, as long as he was a civil officer at some point in his life. (The "radical" view.) ){l

This breakdown can be placed in a two-by-two chan:

iW usl lhe offense have occurred while the offender was in office?

Yes No

A'l ust thf' Imrt)' In"f'srn I ~Y bl' in o{ficf'? Yes No 1 (consnwllivf') 2 (lalp) 3 (Whill''r) "' (radical)

Interpretation #4, the radical version of late impeachment, is immediately problematic. It eviscerates the limitations inherent in the word "impeachment," because it allows people to be impeached who not only committed offenses wholly unconnected with their service, but who are not currcntly serving in any office. By using the term "officer" neither as a basis to define the offense nor as a basis to define the defendant in any relevant way, #4 expands impeachment beyond all reasonable compass. It renders the use of the term "officer" an illogical and arbitrary formalism. The principal benefit of Interpretation #2 is that, by basing congressional jurisdiction on the status of the offender at the time of the offense, it reinforces the notion that "impeachmcnt" for "high crimes and misdemeanors" is limited to offenscs 200. This \"it'w possibly could be divi(kd into two ,eparate \"ari.IIl". nit" olli((' which tIlt' ""Iwct committed tht" ol1"el1'e ma) or lIlay not be the '.IIIIt· .1' the olli( e which the ,uspect is currently ,erving. This i"ue I ' di'cw.,ed further below. III 1'.11 t V.I'

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committed by public officers qua public officers. ' In other words, if impeachment is supposed to be about offenses that, as The Federalist put it, "proceed from the misconduct of public men . . . [and] may with peculiar propriety be denominated POLITlCAL,"202 it only makes sense that the term "ch'il officers" refers to the offender at the time of the offense, regardless of what has happened to him in the lengthy interim of discovery, accusation, debate, impeachment, more debate, and conviction. Indeed, this is the clear scope of the impeachment powers M specified in the state constitutions written before 17S7. It also tracks the way English impeachment was timed, which is significant given the textual fact that the Framers explicitly changed the rules where they found English practice unsuitable-and they made no such explicit change with regard to the timing of trials.2Q.I The principal defects in #2 are that it makes the term "civil officer" appear to apply to people who are no longer civil officers and that it may moot Article II, Section ·1's mention of removal by applying to people who have no office from which to be removed. But removal is just a penalty on convictioll-if applicable-and does not purport to be a further description of who is impeachable. Put another way, the removal requirement is a check on officers, not a protection for them. j\,loreover, removal is not the only penalty facing the target of an impeachment. 205 Criminal statutes that specify penalties in similar ways generally are interpreted this way; thus, the Constitution should be alsO.206 To take just one example, the federal statute OIl bribing agricultural inspectors specifies: 201. See BELK.'tlll). 203. See supra Pari 1Il.B.2. 204. See supra nOle 142 and accompaming Il'XI. 205. See infra Pari V.B and V11L-\ (discussing disqllalificaliun p,,·.IoII1\) .md 1',111 VlILB (discussing possibility of olher penalties). 206. See, e.g., BELK.'-); 111•• 11 1:)·1 (opllllon of Senator Kernan) (citing stalllle prmiding Ihal -"'wr\' oflin'''- cUllllllllllng e.. rt'lIn crimes "shall, upon comiction, be rl'mm·l'd from oflicl' and fon'\''''r 11I"·I'...III .. r b..• incapable of holding any office under Ihl' llnill'd Slatl'S-); ul. al :{G·I (UpilllUII of Senator \\'adleigh) (arguing thaI "such a COnSlnlClion wOllld b ..• .. I,,"rd- if appht'd 10 ,lIcll statlllCS).

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[AJ ny inspector . . . or other officer or employee of the United States . . . who shall receive . . . any gift. money. or other thing of \'alue . . . shall he deemed guilty of a 1c.·lony and shall. upon conviction thereof, be summarily discharged from office and shall be punished by a fine . . . and by imprisonment not less than one year nor more than three 20i years.

Few people would read this statute and conclude that because it mentions only current employees and officers, and becausc it specifies removal from office as a mandatory punishnlC'nt. that one who has left office cannot be prosecuted under this provision. Indeed, former Secretary of Agriculture Mike Espy l was indicted under this statute three years after leaving ollicc. "" Although Espy was eventually acquitted, it was not because he had already left office; his trial proceeded to the merits.~'" Another constitutional provIsIOn presenL<; a similar interpretive challenge-and has been read the same way by Congress. Article I, Section 5, Clause 2 provides: "Each Iiouse may . . . punish its Members for disorderly Behaviour, and. with the Concurrence of two thirds, expel a Mcmber. .. !I" Congress has used this power to discipline members who have already left office.~11 Interpretation #3 has textual appeal ("officers" arc "officers." and ex-officers are not), as well as an admitted degl"lT or coherence. Playing off of the reference in Article II, Section" to removal. it focuses on the fact that only current oflicers can be turned out of office. If they are already gone from office. the Removal Clause is rendered mere surplusage.ll~ Under this view. 21 l".S.c. ~ 622 (1994). Bill Miller, 1':5fr)' Arqlllllni 11/ (4" Calr. \\'''~II. Pos I. Ik( :~. I !l9H .•11 i\ I (~lIl1lmari/ing chronology of Espy cas,"). 209. L'nited States \'. Espy, 145 F.3d 1369, I:nl (D.C. Cir. 1!)9H) (.III.ldllllg 110 Ieg.1i ,ignificance to fae! that "E.'py is not ,ubject to 1('lI\o"al because he " uo IOllgel Se( 1('1.11 \ of Agriculture"'): Miller, 5ll/Jra note 20H. 210. L" .5. CO:-';S'1. art. I. ::; .J. d. 2. 211. Sfe infra Pari \'1..\.3 (discus-\ing «I'e,\ of Repn'M'IIlall\'('\ Whlll('lIlol(' .lIld Dewt"e,e) . 212. SPI', I'.K.. 14 A:-..:-..\[-'i OF CO:-"( •. 4:~O-$1 (IH05) ('I)('ech 01 l.uthel M.III111 "' impeachment trial of Justice Samuel Chase) ("The Pn',idenl, Vice Pre\idcIII, .\IId olh('1 ciVil oflicers can only be impeached . . . . III tht' first alticlt', WOIOII Ihe IIIIld, 01 Ihe COIIMilulion, it is declared that, judgment III all ca,(', of Impeacllll\('III, ,h.11I 1101 ('xl('IId furthel' thall n'mO\"al from oflice, alld disqll.llilic.llioll 10 hold '\II} olli( (' 01 hOIlOl, 11.1\1, or profil, IIl1der the United States. This de •• rh ('ViIlCl", 110 pn\oll~ Inll IhoM' who hold ofIice~ are liable to impeachmelll:'): lIlira tt'xt accolllp.III\'IIlg 1I0l!' :1:>:> b.IIII(' argullu'III iliad .. in Belknap hlle im(leachlllelll (aM'); SOli", \/I/nll IIOIt' I Ii. 207. 201{.

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impeachment is less about tIJring a certain kind of offense than it is about keeping a certain kind of person out of oflice. m An officer who committed a high crime and left oflice would face impeachment only if he returned to oflice. The same would be true if he committed the high crime as a private citizen (after all, the t"vo examples of high crimes in the Constitutiontreason and bribery-are both offenses that can be commiued by private citizens). Despite its coherence, Interpretation #3 tries to make Article II, Section 4 do too much work. Is the mention of removal meant to restrict the result of impeachmelll-and thereby the timing of impeachment trials-or is it just meant to limit the terms of malfeasing chril officers who would otherwise serve for fixed terms (the President and Vice President), at the pleasure of the President (executive chril officers), or for life Uudges)? If removal were the only possible judgment in impeachment cases, the former interpretation would be more likely. Blll removal is not the only possible judgment mentioned in the text; disqualification is possible toO.~H Removal is a mandatory sentence for sitting officers upon conviction, but it is not the sole end of impeachment. ,,,7hile the other parts of Article II, Section 4 look backward to precedent conditions for impeachment, removal looks forward to its results. Thus Article II, Section 4 says "removal requires conviction" and even that "conviction guarantees removal," but it does not clearly or necessarily say "impeachabilit:y equals removability." In SUlll, Interpretation #3 is a relatively plausible textual reading of Article II, Section 4, but it is not the only possible one, and it has deep flaws. Interpretation #1 has some benefits of both #3 and #2. It takes full stock of the word "officer" and the removal prO\'ision, but it also dovetails "rith the contextual notion that impeachment is to be directed at public officials qua public oflicials. However, # I also suffers a drawback of #3, in that it reads too much into the removal provision. Moreover, it opens up a potential textual 213. An excellent piece of evidence Ihal Ihis IS nol Iht· Inlt' mt';IIIU1g of impeachment is the simple faci Ihal laiC impeachmenl \\~1S pr.lclic..d in England .Uld Ih .. states in the years before Ihe drafting of Ihe Conslillliion. ·l1lis ~ lIwr.. a IU"lOnc;11 POUlI than a lextual one, though. See supra Part IIl.A (Engl~h prl'Cl'd"lIl); I'art 1II.B.1 (siale precedent). 214. U.S. CONST. art. I, § 3, cI. i. The possibililY of OIIIl'r plllli,hml'IIU I, dL"-IL"-l'd in Part VIILB, infra.

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dilemma: Can an officer be impeached in a second of/icc for something he did in a prior office? To the extent that such an officer is impeachable, it becomes less tenable to distinguish between Interpretations #1, #2, and #3. In all, though, Interpretation #1 is a plausible one as a matter of pure text. As discussed in detail below, however, it has significant flaws in the realms of structure and precedent.~'; Additionally, similar provisions in state constitutions have not been held to limit impeachment to sitting officers.~IO' 3. Conclusion It is easy to argue that if the Constitution meant to allow late impeachment, it would have made that point much more clearly.217 On the other hand, the same can be said about precluding late impeachment. If one were to focus solely on the text of the Constitution's impeachment provisions-ignoring their history, structure, and precedents-one could best conclude that impeachment may reach public misconduct hy civil officers who have left office. But one could also reasonably conclude that impeachment can reach only sitting civil officers. Because the text of the Constitution does not clearly and directly address the proper timing of impeachment, it is necessary to consult history, structure, and precedent to address the question of late impeachment. Indeed, it is only by consulting history, structure, and precedent that Oil(' call definitively conclude that Article II, Section 4 limits impeachment to civil officers in the first place.

V. STRl'CTl'RE W'hile the plain text of the Constitution's impeachllll'llt provisions does not provide a complete solution to the pu/,Z\c or late impeachment, the larger structure or the doculllellt-its 2Ix internal consistency and it<; recurrent themes -providl's Illuch more fodder for discussion. The Constitution's structure revcals

215. 216. 217.

Sff /IIfra Part V.E (structure); Pan VI./\ (precedent). See infra text accompanying notes 44R-52. Vermont (sl/jlra text accompanying note tl:~) and New./n\{'\ (III/Ill not,' -III)

currently have language that makes late impeachability expliCit. 218. Sef' l,Tfllf'raIZl' CHARLES L BL\( K, SrRl( II R~ _\~I> R~,1_\II()~"1I11' I\, COI'STIITTI(l~.\1. L\\\' (1969); Akhil Reed Amar, III lrall'xlI/lIlmll, 112 IIAR\. I .. R~\' 717 (1999).

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that late impeachment is the only way to avoid several incongruous, untenable, and/or presumptively undesired consequences. Although there are some sU'uctural arguments against late impeachment, they are outweighed by the ones in its favor. A. The Deterrent Effect ofi11lp{'Qc/lml'nt

Impeachment is a part of the larger constitutional SU'ucture of checks and balances. ,\Vhen impeachment came back into vogue in England during the seventeenth century, it was as a means for the legislature (Parliament) to scrutinize and rein in the executive (the King and his ministers). tlQ ,<\l1en the states wrote their first constitutions, having just fought a revolution against ovenveening executive power, they almost all included similar impeachment provisions.~>:!O By the time of the constitutional convention, ovenveening legislative power was the principal 221 concern. While impeachment was included in the Constitution from the outset of the debates, there was intensive discussion over whether the President should be impeachable while in 222 office. Nevertheless, the final document contained a sU'ong impeachment provision that kept the executive and judicial branches under the watchful eye of Congress. With impeachment, then, the Constitution provided ~a bridle in the hands of the legislative body upon the executive [and judicial] servants of the government."r!~ Not only can Congress truncate the othemrise fixed tenns of the President and Vice President and the life terms of judges, it can banish executive officers out from under the President. The President can protect his minions from criminal prosecution with a pardon, but he can do nothing to prevent or undo their impeachment. Moreover, the President cannot remove the Vice President or any judges, and some early interpreters argued that nothing in the Constitution even guaranteed him the power to remove his appointees unilaterally.t:!4 In a structural sense, early removal is 219. 220. 221. 222.

See supra text accompan}ing nOI ...s 3:,.3i. See supra text accompanying nOI ... il. See supra lext accompanying nOI ... 109. See supra Part m.e.l.b. 223. THE FEDERALIST No. 65, al 39i (AI ... xand ... r Hamilton) (ClinlOn RO",lIl'r <"d .• 1961 ). 224. Alexander Hamilton, no shrinking \iol ... 1 wh ... n il GIIIIl' 10 (on-Innng <"x<"nm\<" powers, "Tote in ThP Federalist Ihal pr...sid ... J1Is cOllld nol H'mO\(' appollll ....... \\llholll

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the province of Congress as much as, if not marc than, that of the executive. But what is the purpose of this check? Is it to get rid of malfeasing officers? Or is it to prevent them from malfeasance in the first place? To some degree it is both, of cours(,,~~" but from the standpoint of constructing a government of laws and not men, the system of checks and balances seems Illore directed at "prevent[ing] corruption and tyranny,,22h in the first place than it is at retrospective punishment. As The Fetin"fllist put it: "[S]o far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article Oil the subject of impeachments. ,,22. Consider this analogy. Is the true power of the requirement of Senate confirmation that the Senate can l"t;ject nominees it does not like-a power it uses infrequently-or that it forces the President to not nominate unacceptable people in the first place? Imagine the sorts of appointmenL<; to high office that Presidents would make if Senate approval were not required. Unless one believes that appointments would be the same with or without the requirement of Senate approval, the incentive effect of this check and balance is obvious.22~ This pattern is even more true of impeachment. Impeachment is tremendously cumbersome, and the Senate has not shown much interest in convicting any but the most obviously guilty offenders. There have only been seventeell impeachments-about one every thirteen years on average22 and only seven convictions, all in cases ofjudges. " There have Senatt" approval. fd. :-Jo. 77. at 459 (Akxan.o,-which induded III I III l" IOU' Framers-Ihat the President was given the /1'f.,TH/alll'P awhority to ("("filiI\"(' ! .Iblllet olli! (.( '. I 1\:";>';;\1-<; OF CO,,(;. 3R3-99 (17R9). 225. Jonathan Turley, COIIK'I'''' as GrmuljlllY: n,l' Roll' of Ihl' /low, of Ul'llYflmlalllw, III Ihl' fm/Jl'achmml of all AlIlI'ricr/ll Presulml, 67 CEO. W.\~II, I.. R~.\'. 7:~:), 7W (I !l!I!l) ("[Ijmpt"achmelll emerged from Ihe Con'lilwional Convention .I~ .1 ("h('!" tlml (It"tt"rn'nt:) (emphasis addt"CI). 220. VA:" TA~SEI. & FI:"KEDIA:-', IIllml note I, at :{. 227. T",,; FEDERAI.IST No. 04, at 396 OohnJay) (Clinton Ro~sitl'f" ed., 19lil). 228. q. Al..hil Reed Amar, n,l' T7IIa-TiPrl'd Sin/rltlrf' (if tllP jl/(/JrillT)' Arl of /789, I :~H I'. PA. I.. RE\·. 1499, 1500 & n.3 (1990) (making 'arne point regarding the I'n,,,dellt', v('to power, and nOling that "[Ijhe framers well understood this political ~ciel\(' I.m· 01 anticipaled responst""). 229. Even Ihest" st"ven convictions did nol 'pal(' the Republic frolll allY din' h..,.11 d. As Raolll Berger once pili it, "Once employed to topple [Engli~h I gl.\Ilt~Strafford, Clarendon, Haslings-impeachnlt"1lI has Slink in this coulltry to the OIlM(" of dl('.ln linlejudges for squalid misconduct: BER(.ER, "'Iml note 29, at 3.

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been more cases of resignation 111 the f~lce of possible impeachment then there have been actual cases uf impeachment. 230 More to the point, there likely have been countless high crimes and misdemeanors that were never committed in the first place because of the mere possibilit), uf impeachment. Imagine a United States in which the President knew that no matter what he did, he would be able tu remain in office for four years. Can anyone doubt that the temptation to abuse power-particularly to get reelected-wuuld not have occurred more often in such a system than it has in our real one? No executive officer has ever been removed fmm oflice through impeachment, but every executive oflicer has been constrained by the possibility of it. By the same token, late impeachment may rarely be worth pursuing in f~lct, but its presence may nevertheless represent an efrective way to deter officeholders from malfeasance. Even in actual cases of its application, the purpose of the impeachment power is broader than removal of particular officers; it has the loftier goal of causing better administration by promoting ultimate accountability. In the words of one commentator: The only things that can be done-and the thinhTS that Illust be done if the abuse of power is not to becollle a precedent for subsequent and perhaps even graver abuses and usurpations-is to render the perpeu.Hor incapable of further wrongdoing and to make his punishment serve as a warning to his successors. Impeachment serves the latter purpuse fully as much as the former :!SI

Late impeachment is an important conu'ibutor to these aims, m and barring late impeachment would undermine them. If impeachment cannot touch an officer once he has left oflice, then it provides significantly less incentive for the oflicer to 230. See infra note 411. 231. Bestor, supra note 133. at 277. E\'en opponenL' of lal,· I IIIp,·•..-hlll"lI I h.l\ .. noted strongly that impeachment is a "curb upon th .. <·X .. I-o,,· of pOl\'l'r III Ih,' 1"'..........'lOn of those subject to impeachment." BELK.""'I'TRIAL. 5II/,rn nol,· IS ••11 ·10 (Il'CllJ(hll~ argument of defense counsel in late impeachlll .. nt GL"·). 232. The deterrent effect is disClL-s ..d in this Part: III<" IIK.lpanl.lIIl1~ "IIl'( I l ' discussed in the neXL See infra Part V.B. Th .. det .. rr"llI POIIII \\~L' 1II.IlI,· d ...lrh III Ih,' Belknap case. See infra note 353 (exampl ..s from Bdl..nap 1n.11) and I,'XI .ll"nlllll'.lII\lll~ notes 379-81.

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behave. More precisely, it provides an incentive for him to behave only early in his term, to conceal his wrongdoing long enough to run out the clock, and to skip out of office if congressional action becomes a serious issue. 2 '11 By contrast, if he is amenable to impeachment and disqualification for the rest of his days, an officer will have an added incentive to conduct himself appropriately to the very end of his term. To the extent that he does not conduct himself properly, it will at least be harder for him to escape scrutiny forever, as elections intervene and seats in Congress change hands. This accountability will provide some deterrence to others, if not the officer himself. To be sure, many impeachable offenses can be pursued in parallel as criminal offenses in ordinary courts, and ex-officers still must contend with those potential sanctions. But those 211 sanctions exist when the officers are still in oflice toO. And impeachment reaches offenses and provides punishment that the criminal process does not or cannot.2'I·, Barring late impeachment does not increase the efIect of criminal sanctions as a deterrent; it merely limits the effect of impeachment as a deterrent. On another note, criminal sanctions provide a keen analof.,'J' to the deterrent effect of impeachment. Imagine a larceny statute that allows a sentence of restitution and jail time. Imagine now that a defendant can terminate the criminal proceeding entirely by returning the stolen money. No thief would ever face jail time, because he could simply pay restitution if and when he was caught and preempt the proceedings. Imagine further that the statute of limitations in this larcell), statute was very short, or better yet that it expired at a set dale

233. See BELK.'>;,-\I' TRIAL, IIIP/{/ note IH, at 129 (opinion of St'n.ltol lI.waul) ("Ill(" train could be laid and the slow-match lighted with dost' c.lleulation, .lIId tht' IIU l'luh.ln' retire to the place of~afel:) oUL~ide the jurisdiction charged with hi~ p\llll~hIlH·IIt.") 234. RA\\,LE, "'1m/note 35, at 215 ("[Tlhe ordinary tlibunal,;" WI' ,h.llI ,('t', .1It' liCIt precluded. either before or after an IInpeadlml'nt. from taking (ognllan, t' of tht' pllbl\( and official delinquency."). Bill 'ee Akhil Reed Amar & Bri.1II C. K.llt. Dw /'I/'IIt/I'1III11/ I'nm/l'gp Agalllsi I'rOlf(lIllOlI, 2 l\~,Xl'~ II (1997) (.Irguing that prt',ldt'nt, a.t' 1111 III III \(' from criminal proseclllion while in office). 235. Sel'R.\\\'LE, ",pm not(' 35, at 211 ("(Plolitical offt'nct" , .. would bt' dilli, ult to take cogninnce of in the ordinat:' cour't' of judicial proc('('(ling'."): It/, •• t 2 I7 ("( rIll(" sentence which this court is authori/ed to illlpow cannot rt'gularlY bt, pronolln't'd bl the court, of law."). For more on thi' point, st't' IlIjm nott' 274 and accompanYIng tt'" (discussing impeachment ca,es that criminal law will not rt'ach). and nott" 24,1 .uul -, It) (discllssing criminal statutes that prescribe r('moval and dlsquahficatlon ." pott'ntl.II punbhm('nt and con'titlllional probl(,lIl~ with tht'm).

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every four years. The incentive not to steal would shrink to I.ero as the limitation date approached. Only the meekest of thieves would be deterred by such a statute. But this is just the son of incentive structure that impeachment would be limited to if late impeachment were not permitted. B.


Disqualification, and Moo/ness

If one believes that the central purpose of impeachment is removal of the offender, it would follow that late impeachment is not necessary to protect the deterrent effect of impeachment. Returning to the larceny example in the previous Pan, if the only sentence for convicted thieves were restitution, it would be no great tragedy if a thief could preempt a prosecution against him by making restitution. Similarly, if the main idea of impeachment is removal, what difference does it make whether the officer leaves office through impeachment, resignation, removal by the President, or expiration of his term? A member of Congress can resign to avoid expulsion, and no one quarrels with that. 236 If Congress can force someone from office with the threat of impeachment instead of having to perform an actual cumbersome impeachment and trial, that is a good thing.~'7 This point, true as far as it goes, overlooks the significance of disqualification (not to mention other possible consequences of impeachment).238 The addition to the Constitution of disqualification as a possible penalty was not a throwaway.~'" All but one of the pre-17S7 state constitutions that specified

236. See BELN"1AP TRL-I.L. supra note IS. at 1:~1 (opinion of Stonawr BoU(',· .... Il) (making same point). 237. See Finnage & Mangnlln. supra note 142. at 1O~J.l (-Rl"'l):lI.LUOII 1I ........ d lIot represent the defeat of the impeachment process but imtl'ad lIlal bl' jmt on .....1.'>1'.... <:1 of its successful operation."); BELK."A!' TRIAL. wpm note IS. at 8:, (01'1111011 01 Stollalor Frelinghuysen) ("[I]f he resigns. rl'mol'al. thl' main objl·n of IInpl·;I<1I1I1 .... II(. l ' effected.") . 238. See infra Part \'lII.B. 239. See infra Part \'lIl.A. SOI1Il' hal"<' arglll:d that dlS a pranlt.11 mauer, there is a chance that such officials could stage a cOIlll'baci....Y~ Part \'l1I.A. "'1m. discusses some of these practical considerations. Most famotl.'>ll'. JUd):l' Air ........ 11.I.'>tlll):' was elected to the House of Representati\·l's afll'r being imp ....achC'd. ulII'l("(C'd. "lid removed from office. See supra note 12.

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possible punishments included disqualification among then1.~I" Especially in an age oflong, varied careers, it was very significant that an impeachment conviction said not only "get out!" but added an emphatic and irreversible "and stay out!" It is bad to be removed from office, but it surely is no small blot to be "sentenced to a perpetual ostracism from the esteelll and confidence and honors and emoluments" of the United States without hope of pardon.211 This l~lCl was recognized in 17'07 and after even by critics of late impeachment, one of whom exaggerated only a bit when he said: [AJ man who stands convicted of high crimes alld misdemeanors commilled while in oHic{', and is sentelHTd by the court of impeachment to perpetual dis(Jllalification. is held by public opinion to be a living. moving infamy. a llIoral leper, shunned by his fellow man and withollt hope of pardoll 212 this side [of] the grave.

A critic might still argue that disqualification functions structurally as leverage: If removal were the only possible penalty, parties would have little to lose in lighting impeachment tooth and nail. By upping the ante. the additioll of disqualification provides an incentive for oflkials to resigll. essentially dealing themselves a plea bargain down to simple removal and saving Congress tremendous resources. Indeed. many more officers facing impeachment have resigned (do/,ells) than have been convicted and disqualified (two).w But this view is not tenable. Either disqualification is a significallt punishment, or it is not. If it is not, then it does not serve tht' plea-bargain purpose. If it is a significant punishment (Ollt' certainly hajjes that it is), it should not be presumed lightly that 240. Srr IUpm Pan 1II.B.2. 241. Tm: FEDER\USr 1\0. (i5. at :~99 (.\It'xander II.ulli"on) (Clinton Ro"lIel .. d. 19(i I). 242. B~LK' \1' TRI \1.. IUlmi note II'. at 92·93 (opillioll 01 Sell.ltol \1.lxn): 1l«((lId III at 153 (opinion of S(,lIator Dawes) ("Like the leper he ', alolle. ,hunlled bv .111 (1e.1II men."): FR'\'C1~ WIIARTO:-l. ST,\IE TRIAI.'i OF IIIE l';-"IIFIl SI \I~~ Dl RIM. Irtf AD\II,I~IR\IIO'~ OF WASIII:"t:IO:-; V.;n AIl\\I~ :~()I·02 (Bun Frallkllll 1970) (HWI) (argument in impeachment case 01 William Blount): wr ailo. r.K.. State \ 11111. :",:; ;\J.\\' 794.796 (1\eb. 18(3) (rejecting lat(, impeachment in state ca,e bill 't.llillg that "101111 Will concede that di,qualification to hold olliee is .1 punishment IIIl1ch gn·.Il(·1 Ih.1II removal"): CO:"<:. CLOIIE. 29th Cong .• bt Sess. 641 (11'4G) (state me lit 01 Rep. Ad.IIII') ("[Ill an~ public officer ('\'('r pill himst'lf III a po,ition to be tried bv unpe.H hlllellt. he would ha\'e Yen' lillie of my good opinion. il he did not think diMJll
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the Constitution allows it to be evaded so easily. Moreover. the more likely disqualification is to be significant-that is. the more likely the target is to want to return to government-the more important it is to actually apply it. Returning to the plea bargclin analogy, consider that a possible death sentence may cOll\"ince murderers to plead guilty in order to get a life sentence. But if such a sentence arrangement were solely up to the murderer. then no one would ever get the death penalty. a problem given that sometimes the prosecutor actually wants to seck the death penalty and that it is precisely in those cases that the murderer would be most likely to receive it. It is more likely that disqualification is meant to serve as an actual punishment.~H As a result, impeachment (unlike expulsion) is not just about removal, and late impeachment is essential. Without it, a party by resigning, or a President by firing him, can flout any attempt by Congress to disqualif)'.~··· Although the party would be submitting to removal. the significant penalty of disqualification (and possibly others~·(') would be taken ofI of the table. To be sure, some parties would stand and fight their impeachment. If they felt that they had a chance to prevail. they might not resign even to the end. But parties who know that they will be convicted-the worst offenders. roughly speakingwould have no reason not to resign. The outer bounds of the impeachment power would thus be scaled back, not because the offender merited lenient treaunent but paradoxically because he did not. The Senate would be rendered, as one senator put it in a late impeachment case "the only court in Christendom whose jurisdiction . . . depends on the volition of the accused. "24i

C. The Indistinguishahle Stages oj Impeachment Late impeachment presents a line-drawing issue. Virtually every opponent of late impeachment concedes that at a certain point in an impeachment proceeding, the target loses the ability to end Congress's jurisdiction by resigning. Take an extreme 244. Indeed, the First Congress established it as pllnbhnll'1Il for otltl'r olTl'I~'" ;u well. Though this is a constitutionally problematic illfringelllelll on thl' I'rnldl'nt\ appointment power, it shows that disqualification was taken serioll!>l\' in lltl' 1780"..\.or infra note 549. 245. See infra Part V.D. 246. See infra Part \'1II.B. 247. BELKNAP TRIAL, supra note 18. at :~59 (opinion 01 Senator :"'o .."o()d).

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case: An officer is impeached, tried, and resigns between thc 2lM casting of the 66th and 67th votes to convict. Few would arguc that such a conviction would not be valid. This is the view not just of late-impeachment opponents issuing dicta to avoid looking extreme; this is a distinction drawn by state court<; that have reviewed analogous state cases. The question then becolllcs one of line drawing. Can the officer strip jurisdiction by resigning before the Senate vote starts? Before the trial starts? Before the House vote starts? Before the House debate begins? Before the House committee proceedings begin? In some states, there is an arguable textual and structural basis for drawing a distinction between the stages of impeachmcnt. For instance, when the Nebraska Supreme Court rejected latc impeachment in State v. Hill,21" state law provided: "An impeachment of any state officer shall be tried, notwithstanding such officer may have resigned his office, or his term of office has expired.,,2:;o This language more easily supports the notion that impeachment is limited to sitting officers but that trial is 2jJ not. In the federal Constitution, however, there is no such basis to distinguish between the stages of the impeachment proceedings. The only possible source of a limitation on the timing of impeachment comes from Article II, Section 4, which states 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." If the mention of removal means that only those who can be removed can be "impeach [edl . . . and convict[ed]," then resignation would stop the proceedings even at the very last possible moment of the Senate vote before 2j2 conviction. Similarly, if only currently sitting "civil officers" ('
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If one is not troubled by the possibility of the defendant tenninating the tribunal's jurisdiction, then this is not a problem.53 But while one might wish to give Congress the optioTl of declaring victory and ending proceedings, it is quite another matter to say that Congress is constitutionally disabled from continuing impeachment proceedings in such a situation. If late impeachment is permitted, then this line-drawing problem is mooted. But some critics of late impeachment, aware of this problem, have drawn a line at the beginning of "the proceedings." They declare that once jurisdiction is established in the House, there is nothing that the defendant can do to prevent impeachment proceedings but that any other late impeachment is forbidden.~M In doing so, they raise another line-drawing issue. One must then determine when the proceedings begin: 'Vhen an accusation is made on the floor of the House? vVhen the matter is referred to a committee? Others draw the line at impeachment itself. Once the House impeaches, they argue, the Senate has jurisdiction to finish the process. If the defendant resigns before the House completes its vote, however, the case ends.~:·' These distinctions may make sense as a maller of abstract equity or as a matter of ideal structure, but they do not have any basis in the text or structure of the Constitution. If the Constitution limits impeachment in the House and trial in the Senate to sitting, removable "officers," then it necessarily follows that a target of impeachment can end the proceedings any time he chooses. The fact that this conclusion is unacceptable to most opponents of late impeachment shows that opposition to late impeachment, while stemming from bare textualisIll. cannot remain there without either intolerable results or inhereI1l self:' contradiction.

253. See, e.g., id. at 43 (defense counsd in late illlpeadlllll·J1[ ("a,.,· Cllll(t'dlllg Ih.1l resignation would be effective at any slagd. /Jill Sft' ,d. al flS (ddl'ns,' coun ....1 th'llmMlIg question as unnecessary to decision of casd. Ob,;ously. Ihi,. Arliclt' lllaml;Um 111,11 Iht'rt' are significant s!lUcmral problems ,,;lIl laking such powt'r away frolll COlIgr............" "'lUI Pans V.B (discussing s!lUcmral import.1.nce of disqualifir.llion. ,,'Illch wult! t'.l>lh btmooted iflate impeachment is impossibld and \'.D (dbnl>Sillg slnlclllr.1I rnlnnttlll> Oil the President in cases ofimpeachlllelll). 254. See, e.g., BELK."APTRIAL. slipra 1I0le IS. aI8:~ (OpilllOIl of 5ellalOI" Frt'lmghU\'>C'1I in Belknap case that resignation cannol elld lrial onn' b"gulI); Ill. al 101 (OpIIIIOII o( Senator Christianc},) (hinting at same); /IIlra note ·m:~ and acwlllpannllg tt'XI. 255. E.g., BELK.'1AP TRL-\L. slipra note 18. at 126 (opillion of Senalor hlli-Ilb ..

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D. Pardons, Presidential Removal, and the Impeadunent as Inqlll'st

The Constitution specifically forbids the President from using 2 his pardon power in cases of impeachmcnt. "" A President's ability to flout impeachment by removing the o fIicia I in question-perhaps simply by reassigning him to a post on his staff that does not require Senate confirmation2">7-is structurally incompatible with the impeachment exception to lhe presidential pardon power. It seems illogical that the President could use his removal power to achieve the same end indirectly. Alternatively, it seems strange that a more respectful President could be forced to choose between leaving the offender in OfIi(T or removing him promptly but preventing him from being fully punished. The impeachment exception to the pardon power arose from the case of the Earl of Danby in the late seventeenth centllty.2·'X King Charles II pardoned Danby not because Danby was innocent but because the King was guilty of questionable dealings with France. Had the impeachment trial gone fonvard. the evidence uncovered would have embarrassed the King; by pardoning Danby, Charles prevented the investigation. r ," Parliament later precluded pardons from barring all impeachment in an effort to prevent a recurrence of this assault on its authority.2bO In the United States there is no reason that Congress cannot pursue the President directly, and Congress can launch investigations short of impeachment'). So there is less danger that a President might pardon a subordinate to prevent a congressional investigation. Moreover, because a President is no king and serves for a maximum of ten years,2hl the general possibility exists that a future administration wiII be able to 256.

u.s. CO:'\ST. art.


Sel'Su/ml text accompan}ing note 4 (presenting such a hypothetic,II).


!:i 2. d. I.

258. Kalt. sU/Jra note 13, at 783-84 (describing case of the Earl 01 i),lIIb), ,uHI subsequent parliamentary trimming of the royal pardon power). 259. See ui. Charles had no particular interest in protecting Dallbl' him~ell; the E,1I1 languished in the Tower of London for years. despite his pardon. Id. at 784 JI.:{9. 260. Id. at 784 & n.40 (discussing 170 I Act of Settlement). 261. U.S. CO:'\ST. amend. XXII. Cf. supra note I:{O. Before the passage of the Twenty-Second Amendment-including the framing era-the fact that a Presidellt possibly could serve forever provided a reason to ('mphasi/e removalJllit)' whell discussing impeachment. These \iews are consistent. or at least not incoJlsi.tellt. wllh late impeachability. See supra text accompanying notes 12:>-31. 149·50.

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criminally investigate the President and his minions. But regardless of the potential for criminal proceedings in a new administration, Congress is the grand inquisitor of the L'nited States, with the explicit power to investigate the conduct of executive and judicial branch officials outside the confines of the criminal law. Even though Congress can hold hearings and launch investigations without resorting to impeachment, impeachment is the only process that the Constitution provides for investigating public officials' conduct and for render·ing a formal verdict on abuses of the public U"lISt. In other words, impeachment is supposed to check presidential excesses, and the Constitution explicitly prevellls the President from assaulting congressional impeachment jurisdiction via the pardon power. It does not logically follow, then, that the President could remove a subordinate and thereby terminate the highest of congressional inquests. As a member of the House about to vote on a late impeachment incredulously put it to an opponent: Will you say to the country that he whom you ha\'t' plact'd in power at the other end of this avenue is able to rob an American Congress of a right and a power that a King of Crt'al Britain could not take from Parliament? [Applause on lht' floor and in the galleries.] Is that your theory?:!<'~

This would be a curious theory indeed. Moreover, it would be strange if the impeachment power was limited in a way that gave a President deJe1771lg to Congress an incentive to allow a malfeasant officer to remain in oflice. The President also has the power to remove executive oflicials, but without late impeachability, a President would be hamstrung if disqualification of the official were appropriate as well. Impeachment would be necessary to level such a punishment, and if late impeachment were impossible, the President would have to choose between a full penalty and immediate removal. Disqualification would be most appropriate in the worst casesthe very cases in which immediate removal by the President 262. 4 CONGo REc. 1432 (18;6) (slalemelll of Rep. B1ackbllm). ·lllt· Comlillllloll actually protects impeachmelll from pardons e\"en more slrongh' Ihan Ihe Engl~h ' ...·Mem did. The English pardon exception pre\·ellled Ihe king from preempling _III impeachment trial but did nOI pre\"elll him from pardoning Ihe Wrgl·1 afler nlll\lniun The American pardon exception pre\"(.·nts Ihe Presidelll frolll preempling uf IIlldulllg .111 impeachmenL See supra nOle 13.

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would be most important for the country-and so barring late impeachment presents yet another structural hiccup.~'''' As a final note, there is no question that a broader impeachment power carries with it a greater possibility of abuse, especially given that the President has no ability to stop an impeachment, and the courts have little more. This is not, however, a reason to give the President questionable powers against impeachment. Congress can abuse impeachment whether or not late impeachment is part of its arsenal, but the Constitution provides structural safeguards against such abuses. 2h' Presidential power is not one of them.

E. 17te Four Interpretations Recall the four possible interpretations of the scope or impeachment timing: 2b:'

iVlust the offense have occurred while the offender was in office?

Yes No

lvlust the party presenl(Y be ill office? No Yes 1 (conservative) 2 (late) 3 (Whitewatt'r) 4 (rat/ira/)

Analyzing each possibility from a structural standpoint, severe defects emerge in Interpretations #1, #3, and #4. Interpretation #2 is not perfect, but it is the least problematic. The "radical" approach to impeachment (#4) would allow anyone who had once been a civil officer to face impeachment, regardless of when he committed his offense. A view this broad would not dissuade sitting officers from misconduct in oHiee, nor would it serve the purpose of removing "bad" oHiens. II would function only to disqualify "bad" people from future federal office, but there seems to be no basis under the

2fi3. It i, perhaps not a coincidence that the only ft-deral late impe.lcilllH"lIt 111.11 occurred during- a lime when the presidential removal power wa' 1(·,11 iCled. rhe Belknap case fell in the shadO\, of the Tenure of Oflice Act. willch m.l(le " (hlli( "It 101 the Presidelll to rell1on'. or even ~uspend. members of his Cabinet. S"P IIFt"~ \1"1 RI \1. IIII'm note II'. at fi2 (House manag-er noting- limilatiom on pn',idential ITIlIOY.t1 I'0wel and asking-. "\Iusl a defaulting- Trea,urer of Ihe l'nited Stale, he kit III (h.lI).:e 01 Ihe elllire TreaMlry until conviction and sentence?-). It doc, not .IPI)('ar. hO\\'e\(·I. Ih.11 nlO" proponents of late impeachment considered thb argumenl ,iglllfi(alll, III .lIn ('''t·, Ihe Act wa, later correctly declared unconstitutional. ~h'er' Y. l'niled SI.IIt',. 272 t' S. ~)2, 171> (1926). 264. SI'I' /lIjia Part VIILG. 2fi:>, SrI' I/llna rart 1\'.B.2.

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Constitution to distinguish between former ofliceholders and mere private citizens in this regard. If a private citizen should be disqualified from ever holding federal office again because of something he did as a private citizen, why should it maller whether or not he held a federal office al some other poim in his life? Once again, the radical approach would transforJn the designation that "civil officers" are susceptible LO impeachmelll from a check against federal officeholders i11l0 an illogical and arbitrary formalism. 266 There is no structural support for such an interpretation. The "conservative" approach (#1) would allow only impeachments against sltung civil officers, for offenses committed in that office. A Supreme Court justice would not be impeachable for offenses committed as a circuit court judge.''''; A Secretary of State would not be impeachable for offenses committed in his earlier job as SecretaI)' of the Treasury. More problematically, a second-term Preside11l might not be impeachable for offenses committed in his first term. Perhaps the terms could be treated as continuous, so that a second-term President would be impeachable for actions in his first term if the terms were consecutive; this is a common interpretation of impeachment in states. 26.' Under this interpre~ltion, however, Grover Cleveland would not have been impeachable in 1893 for something he had done as Preside11l in 1888, even though Bill Clinton would have been impeachable in 1998 for something he had done as President in 1993. Again, this distinction seems to lack a structural basis. Proponents of this approach would likely respond that an intervening election or Senate confirmation would .iustif~· a bar on impeachment. If someone can cOI1\'ince the Presidelll andC/ or?) Senate or the electorate that he is worthy of oflice despite his past offenses, Congress should not be allowed LO 269 reverse that determination. But why should election \'indicate 266. See id. 267. This issue was implicated, bUl not decided ddilll!J\t'h, 11\ [It,· .1II.llogoll> Archbald case. See inJra Part VI.A5. 268. This issue has arisen in state cases "nough [hal i[ i, di'C1I-'>t'd 11\ [h,' ClJIpu, Jum Secundu7lL It has been held that continuous terms in [h,' >:1111,' ofiin' an' ('ulI>ldt'ft'd Ollt' unit for impeachment purposes, but discolllinuous [t'nns or diIT"n'lI! ofiien .Ift' 1101. \u 67 CJ.S. Officers § 120(c) (1978). 269. See Two Prouedings oJI},r Small' mId I},I' HorLSl' oj Rl'prnl'11laln'''' uJ Ihr ('''lIrtf \Itlln in lhe Trial oj Impeachmml oj Rnbrrl II: .... rchbald. S. Doc. :-;0. 6!!·ll-lO .•11 ltj:H.:n 1191 :i) [hereinafter Archbald Trial) (opinion of Senator Bn~lII) (afguillg a~lim[ .1 '111111.11 ",rt or

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Clinton and not Cleveland? Moreover, even if an impeaching Congress should take this factual matter into account, there i~ no guarantee that anyone would know of the past illicit conduct at the time of reelection or reconfirmation. One need look no further than Watergate for an example of presidential misconduct that was only uncovered after an intervening election. Indeed, by its very nature, electoral chicanery like the Watergate break-in is the last sort of high crime that ~hould be placed beyond the reach of impeachment.~7" In any case, the (;\ct that confirmation or election would solve this problem in some or these cases is no reason to bar impeachment in all of these case~. The "vVhitewater" interpretation (#3), which allows impeachment for any past actions so long as the party i~ currently a civil officer, would solve the structural problems or the "conservative" approach. It is worth noting, of course, that if an officer is being impeached under Interpretation #3 for an offense committed in a previous office, this is a form of late impeachment. In other words, the vVhitewater view allows late impeachment, but only if the defendant is serving 111 a Ill'\\' office. Interpretation #3 has an admittedly strong structural underpinning: If impeachment is about removal, then thi~ approach fulfills that objective in the broadest possible way. A civil officer is removed from his current office if he is deemed unfit for that office, regardless of when his unfitness mallire~ted itself. AsJorge Souss put it: [A] re we supposed to believe that if we now discovcred that Christine Todd Whitman or Stephen Breycr (to pick two "officers of the United States" at random) were serial ki\lcrs back in the early 1980s that Congress could not impeach them? Or that if George W. Bush robbed ajewelry store on the morning ofJanuary 20, a few hours before being sworn in, that he would not be subject to impeachment lor such behavior? Such results would be unimaginable, and for good n·aSOll.~71

This interpretation also has an answer for a converSe problem: Suppose a President robbed a jewelry store not an hour before late impeachability and stating "[bloth the Presidenl wht'n he nOlJlill.lle~ .lIld Ihe Sell.ll!· wht'n it advises and consents, ought to be ~atisfi('d. it ~'Tm~ 10 lilt·. wilh Ih,' (h.1I a( lei and qualilicaliom of the cili/en"). 270. SrI' \II/1m lext accompanying (lOll" 125·31 «,011\('1111011 deh.lle, dl\( 1""lg Ih" i~sllt·) . 271. SrI" Souss, llI/mlllOte 16.

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he took the oath but an hour before his successor did? Should he be able to elude impeachment? And what about the official whom the President cannot pardon but can fire?"': The "Whitewater interpretation would provide that impeachment could not occur in such situations unless and until the culprit returned to office,273 but it would deny that this is a problem, given the possibility of regular criminal prosecution, This is fine for Souss's jewelry store owner, but it is of cold comfort once one returns to the real subject of impeachment, public offenses, "\That about a President who waits until the last day of his administration to abuse his authority as Commander in Chief? Or to issue corrupt pardons? Or to commit any other abuse of the public trust that cannot, should not-or, as a practical matter, will not-be covered by the criminal justice system?274 Surely, it is no coincidence that neither 'William Blount nor William Belknap, the only two men subjected to late impeachment, were ever criminally prosecuted for their offenses,2i5 And what of the fact that criminal liability is available for all impeachments, not just late ones? Under the ""Whitewater" reasoning, the possibility of criminal prosecution would preclude any "regular" impeachment as well, Impeachment addresses great offenses against the publicoffenses that the criminal law may not touch or that ordinary criminal justice is not equipped to handle properly, As Alexander Hamilton wrote in 171(' Federalist, impeachment cases are placed under the puniew of Congress in large pan because the very nature of the offenses at issue makes them inexu'icably politicized, Thus, the House-not regular prosecutors and 272, See supra Part V,D, 273, The Whitewater interpreter could make good IISl' of (hl" fan (ha( IIIlPl"ildlllll"nt would reemerge as an option if the target were (0 relllfll (0 offin', In a "~I\, (IlLS \,'ould accomplish not just removal but disqualification, Therefon', (hl' a'1,'1.lml"nt "'(l\lld folio\\', there really would be no reason to pursue a la(e impl"adlllll"nt, I>l"Gll= Uo(h constitutionally permissible ends of an impeachment com;nion would lx, off (hl" (abll", But disqualification would not complctC'ly disappl"ar from (hl' (abll', 'IlIl" fan (ha( (hl" offender would face potential impeachmcnt if he relllrnl"d (0 offin' would no( ml",ll\ (h;u he could not return to office, It would mean only (ha( if he did and If hl" ,,~~ no( confident that Congress had shifted its predill"c(ions in his favor, hl' ,,'ould I>l" in (hl" same position as before he resigned, 274, See Turley. supra note 165. a( 56 ("A( a timl' of los( public confidl"n('(' III (hl' integrity of the government, the conduct of a fonnl"r official Gll\ dl'mand ;1 poliuc;11 response, This response in the form of an impl"achml'nt m;l\ bl' mOrl" imp()rtant (han a legal response in the form of a prosccution, -), 275, BUSHNELL. supra note 16, a( 37 (Blount): td,a( 189 (BC'lknapl: sa' (IUO w!ml'an VIlLA,

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courts-is the proper body to lead it. The Whitewater view misses the point in its argument that impeachment is for current officers and that anyone else is left to the criminal law alolle. Impeachment draws its institutional reason for being from the nature of the offense, not the nature of the defendant's employment at the time of trial. If it did not, there would be no reason to limit it to high crimes and misdemeanors. The "late" interpretation (#2) comprehends this point and each of the others above as well. It recognizes Congress' power to use impeachment to inquire "into the conduct of public men," however late in their terms their offenses OCCllr, and however long their offenses have been secreted. In doing so. it allows impeachment to present a full incentive for properly performing the duties of federal office. It vindicates the m significant structural role of disqualification. It permits Congress to fulfill its constitutional duty to deter, investigate, rule upon, and fully punish high crimes and misdemeanors, regardless of how willing the defendant and/or President are to subvert Congress's jurisdiction with evasion and chicanery. Finally, and most specifically, it precludes the President from evading the constitutional bar on his power to pardon in cases of impeachment, and it eliminates any incentive to keep criminals in office to ensure that they remain eligible for punishment.



Unlike the speculative and inferential arguments detailed in the previous Parts of this Article, the arguments from precedent in this Part are concrete and directly address the issue of late impeachment. In two cases-those of William Blount and William Belknap-the Senate debated late impeachment at length. Unfortunately for ollr purposes, it did not reach a decisive result in either case. In Belknap's case, the Senate did formally accept late impeachment, but while enough senators 2i6. SffTm: FEm:R\u<;r No. 65. at :~9i (Alexander Ilamilton) (C1illtoll Ro"u,', ,'d., 19(1) ("\\'hat, it may be asked, b the true ~pirit of the institutloll it~e1f? I, It 1I0t d.,,,)(, ... d as a method of :--:ArIO:'-lAL ':--:Ql ES"' into the conduct of pubhc lIIell? 1/ thi, he Ihe d.,,,)(u of iI, who can prope,"I} be the inquisiw" for Ihe lIalioll Ihe l('I'II''''III.ui,,'' 01 II ... nation Ihem~eh'es?"), 2ii, If an ex-officer b serving ill a 1It'\\ o/lice al Ihe 1IIIIt' 01 Ihe 1I11l'e... 111111'111 .,"d com;ctioll, disqu


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agreed to allow the trial to go fon\rard on the merits, enough senators disagreed to acquit Belknap. Still, the Belknap case proposes that the House can impeach and the Senate can tI]' officials even after they have left office. Even as the case shows how controversial late impeachment is, if it stc'lI1ds for anything, it stands for late impeachability. In other cases, Congress has declined to press late impeachments, allowing officials to resign and the cases to drop. But the fact that Congress had no need or reason to pursue these officials did not mean that Congress lacked the authority to do so. Indeed, in some of these cases senators explicitly recognized this authority. In all, the actual precedents relating to late impeachment are consistent with the conclusion tllat late impeachment is available to Congress, even if it is not always a worthwhile remedy to pursue. Impeachment precedents are not formally binding on Congress, as its members are responsible only to the voters and not to any higher court. In each case, each representative and senator needs to determine whetller a proceeding is constitutionally permissible.~7s This Part of tlle Article does not suggest that Congress would be unable to decide that late impeachment could be inappropriate or even impermissible. Rather, it is intended to show that when given the opportunity, Congress has recognized the possibility oflate impeachment. Filling out the historical record, state proceedings provide still more evidence that late impeachment is possible, some of which rests on state constitutional language quite similar to that in the federal Constitution. Even more so than in tlle federal context, though, these precedents send mixed messages. A Federal Cases

There is precedent for late impeachment in tlle federal system. While there are cases in which impeachment was abandoned upon the resignation of tlle target, in no case was late impeachment specifically deemed unallowable. In fact, official House precedent, citing the Blount and Belknap cases, indicates that the "[a]ccused may be tried after resignation.":r.'I 278. See infra note 372 and accompan)ing text. 279. 3 AsHER C. HINDS, Hllms' PRECEDE.''TS OF TIlE HOl'SE OF Rl:I'REsfXIAlln~ m THE UNITED STATES 307 (1907) (describing -nalUre of impl'achllu:I1I"); Jt~ III/ra !'alb VIAl (Blount case) & VIA5 (Belknap case).

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1. Blount The first federal impeachment case, that of Senator William Blount, was a late impeachment and was dismissed by the Senate for lack of jurisdiction. This lack of jurisdiction did not, however, arise from the fact that Blount had already left ollice. Blount was a delegate to the federal Constitutional Convention from North Carolina, served as governor of the Southwest territory for six years, and was one of Tennessee's lirst United States senators.2~(J Blount apparently became involved in a British plot to take Florida and Louisiana from Spain, a United States ally. After hearing the charges against Blount, forwarded by President Adams, the House of Representatives impeached him on July 7, 1797.2~1 The next day, the Senate expelled Blount for his "high misdemeanor" by a vote of twenty-live to one and ac!iourned 2R2 until November. During this recess, Blount was ordered to appear before a Senate select committee. He refused to return from Tennessee, however, and the Senate impeachment trial 2M1 began without him in December 1798. The trial took only a few days and never got to the merits.2~1 Before arguing anything else, Blount's representatives, Jared Ingersoll and AJ. Dallas, asked the Senate to dismiss the impeachment case: [A]lthough true it IS, that he, the said William Bloullt, was a Senator of the United States from the State of TCIlIH'SS(T, at Some haH" argued that one succl"S!oful impcachlll(,llt, ;tgainstJII(lgc West Ilulllphll'~' in IH62, was a lat(' impeachment. S,'r 43 COM;. R~.c. 324 (IH7f» ('t.ltt'nlt·nt 01 R('p Buti(,I·). I-lumplll'qs had abandoned hi, judie-i.t! pmt to accept ont' III the Con!t'd(,I.H \'. Id. Thus, hI" can be said to have left o/lice be/ell'e hi, impeachlllent. .'in' III. 11111 Humphreys had never resigned, and it was only WIth the ,ucrt'",lul (.md llll( ontt·,ted) impeachlll('nt that he was oflicially removed Irolll oflirt,. Sn'lIl. at :{2f> (statelllent 01 Rep Tremain). Sff gnwrally Bl'SIIXEI.I., \/llml nole 16, at II :>-24 (describing Ilulllplll ey' (.l~(,) 2HO. Bl'SII,ELL, mpm note 16, at 27 (oWlining Blount's care('r); .rr Illl11 I..IWll·ll( (' KestenbaulII, \\,illwlll BlolIlll (1749-18()(), TIIF I'OLII ICAI (;I{,\v~.YARIl, III http://www.politicalgravc)anl.colll/bio/biount.htllli (last Illodilied May I:{, 2(01). 2R I. Bl'SII1\ELL, 1I11)m note 16, al 27-28. 2R2. 5 A'iXALSOFCO'iC. 43-46 (17~)7). 2H3. Bl'SIIXELL, 5Il1)m note 16, at :H. 284. Vic(' President./('flerson, who pre~ided OVl'r thl' Irial, 1Il1l~1 han' h('ell 'Ill pllwd at how swiftl) it proceeded (mc(' il linally begall. Earlier he had w,,(tell 01 Ihe (.I~e. ·Artide~ of impeachmellt wen' ve~lerday gi\ell in again'l Bloun!. . . . I, a Sell.llol impeachable? Is an ex-Senalor impeachabl('? You will readily cOllceive Ih.ll Ihe'e questions, 10 be settled by twenty-nine lawvers, an' nol likely 10 co lilt· 10 sp('ed)' I'-'"e .. WII·\KIOX. IIllml note 242, al 315 n. $ (quoling Jellerson'~ cOITesponden('(·).

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the several periods in the said articles of impeachmt'lll referred to, yet that he, the said \\,ilIiam, is not now a Senator. and is not, nor was at the several periods so as aforesaid referred to, a civil officer of the United Sates. nor is he. the said William, in and by the said articles, charged with h;wing committed any crime or misdemeanour in the eXt'clIlion of any civil office held under the United States, nor with any malconduct [sic] in a civil office, or abuse of any public trust in -85 the execution thereof.-

Blount's argument was that senators are not subject to impeachment, and even if they are, he was no longer a senator. Even if that did not matter, he claimed, he was not charged with committing his offenses as a public officer-that is, a private citizen could have been charged with the same actions. In his argument to the Senate,James BaY'ard, the leader of the House managers, attempted to refute all of Blount's alternative arguments at once. He countered that Article II, Section -l did not purport to limit the Senate's jurisdiction; therefore, it did t not limit impeachment to civil officers. "" To Bayard. American impeachment was coextensive with English impeachment unless a specific exception was mentioned in the Constitution.~"~ This would mean that, as Blackstone had recounted a few decades earlier with regard to England, private citizens would be impeachable for offenses against the public; the allegations against Blount at least qualified as thal. t "-' Turning to the late impeachment issue, Bayard argued that it was irrelevant that Blount was no longer a senator because he had been one "at the time the articles were preferred [sic]. "ZOo" Technically, this was not true, because, as in most early impeachments, the actual impeachment was voted upon before specific articles were adopted.:!90 In Blount's case, the House did not approve the articles until January, 1798, several months after

285. 286.

[d. at 260. [d. at 263.

Su supra Part IV.B.I (discussing and n:jl'ning Ihi, \1l'\, of Amell" 11.

§ 4). 287. WHARTON. supra note 242. al 264-65. S~~ also supra noll' I.J:! and ac("(unp;lIl\1ng text. 288. See supra note 39 and accompanying leXI. 289. WHARTON, supra note 242. al 271. 290. See BUSHNELL, supra nOle 16. al 30 (dl"scribing ordl'r III B1olll11 CI>t'); GERHARDT, supra note 12, at 26 (describing modl"rn changl' \() \(lIIng on arudl-" concurrently willi vote on impeachmcll\).

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Blount's expulsion from the Senate. Blount, however, had been a senator when he was impeached, and Bayard made a strong point that "no subsequent event, grounded on thc wilful act, or caused by the delinquency of the party, can vitiate or obstruct the proceeding.,,2'·2 Bayard sidestepped the harder question of whether an official can be impeached after leaving office and limited himself to the stronger argument that an official impeached while in office can be tried after leaving office. Bayard did not concede anything; he simply limited his discussion to the easiest case. While Bayard's distinction may have made sense from a strategic standpoint, no historical, structural, or textual basis exists to distinguish 293 between late impeachments and late trials. Blount's representatives made a similar effort to narrow their argument to their strongest possible point, addressing late impeachment in the process. Dallas conceded that "there was room for argument, whether an officer could be impeached after he was out of office; not by a voluntary resignation to evade prosecution, but by an adversary expulsion . . . .,,2"1 Dallas's point was that late impeachment might be appropriate if the party had resigned, but it could not be appropriatc if the party had been expelled-especially if he were expelled from the same Senate that would try him. Ingersoll put it more strongly later in the trial: I certainly never shall contend, that an officer may lirst commit an offence, and aftenvards avoid punishment by resigning his office; but the defendant has been expelled. Can he be removed at one trial, and disqualified at another, for the same offence? . . . Is there not reason to apprehend the strong bias of a former decision would be apt to prevent the influence of any new lights brought fonvarri upon a second trial?:!!'"

Thus, while Dallas and especially Ingersoll apparently conceded that late impeachment was possible, they found that latc impeachment of an expelled senator made little structural 291. 292.

WIIARTOI'. supra note 242. at 252. WIIARTO:-; • ."'Iml note 242. at 271.

Sff SlIIJra Part V.c. 294. WIIARTO:-;, slIllra note 242. at 284 . .'iff (lLm mpm note 197 (discus-'lIlg 'lIul'tlll.11 interplay of impeachment and expulsion. supporting notion that no m('mll('" 01 Congres~ can be impeached). 295. V\'IIARTOI', "'lIra note 242, at 296. 293.

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sense. Notably, they did not raise any practical arguments against late impeachment-they did not argue that there is no good reason to impeach someone already out of office. In any event, the Senate agreed to reject the case and not hear the merits. A resolution specifying that "''''illiam Blount \\~as a civil officer of the United States . . . and, therefore, liable to be impeached by the House of Representatives," w'as rejected fourteen to eleven.:!96 In other words, a majority of the Senate did not believe that Blount had been a civil officer. The Senate also accepted a second resolution, which said only that Blount's plea was sufficient and that the Senate had no jurisdiction, by the same vote, and the case was dismissed.~; The three senators who had been delegates to the constitutional convention Uohn Langdon, Alexander Martin, and George Read) voted with the majority on both votes.~s Some critics of late impeachment have pointed to the indefinite nature of the resolution dismissing the case, noting that it approved only Blount's alternative pleading, which included not just the senator/officer issue but also the late impeachment issue.299 Nevertheless, the previous resolution, rejected by the same fourteen to eleven vote, focused only on the senator/officer issue, so if the Blount result can be said to have definitively settled anything, it is that senators are not civil officers. Indeed, the Blount case is generally regarded as standing only for that principle and for the corollal)' that only civil officers are subject to impeachmenL!IOO 2. Calhoun and "Vebster Two non-impeachment cases expose the lise and fall of another side of the impeachment power. Impeachment serves not just as a means of trying public offenses, but as a means of investigating them and vindicating tlle innocent. This broader 296. fd. at 315-16. 297. fd. at 316. 298. fd. 299. E.g., BUSHNELL, S1lpra note 16. al 38; HOFFER & Heu., lIIpra 1I01t' I, al :!57; III/ra note 360 and accompanying text. 300. See, e.g.. State v. Hill. 55 N.W. 794. 797 (Nl'b. 189:~) (rt'Jt'cllllg lalt' impeachment but conceding that Bloum case prO\idl'S no prt'ct'dt'1II Oil Iht' qut'Slion); GERHARDT, S1lpra note 12. at 49 (concluding thai the prt'ct'dt'nt of Iht' Blount CilM" ~ unclear); RAwLE, S1lpra note 35, at 170 (discussing binding naturt' of Blount prt'ct'dt'nt, with which author disagreed); 2 STORY, S1lpra note 42, al 258 (njl'cling idt'a Ih;1I Blount decision "turned upon" late impeachment question).

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notion of impeachment as the constitutionally preferred means of investigating federal officials' actions has much to commend it, though in practice it has not gained acceptance, In 2001, impeachment is seen as something to be avoided if one IS innocent. The case of John C. Calhoun shows the potential usc of impeachment as a defensive technique to bring accusations into the open and resolve them with Congress's decisive investigative power, rather than letting them fester and thrive on innuendo, If a congressional committee examines a case and finds it not worthy of impeachment, the would-be target can proclaim vindication, Then-Vice President Calhoun was seeking such vindication when, in 1827, opponents began circulating rumors of his financial misconduct when he had served as Secretary of UT nar. '1ni Despite the fact that he no longer held the office at issue, Calhoun appealed to the House as the "grand inquest of the nation,,'l(J2 to investigate the accusations: In claiming the investigation of the House, I am sensible, that, under our free and happy institutions. the conduct of public servants is a fair subject of the closest scrutiny and the freest remarks , , , but when such attacks assume the character of imt)('{lc/zablR offenses, , , , an officer thus assailed. however base the instrument used. if conscious of innocence, can look for refuge only to the Hall of the immediate Representatives of the People,'''J~

The investigation took place and Calhoun was officially cleared,'\lll By raising the stakes beyond that of a mere congressional investigation, Calhoun had forced his aCCllsers to put up or shut up and laid to rest the accusations against him,

301. .'iff 3 Co:,\(;, DEB. 575 (1827). Because Calhoun was Vice "residt'ut at the tllllt' of the rumors, some who reject late impeachment might have found him 'USt el'lI"lt, to impeachment anyway. Ser wpm Part V.E (discu~sing "Whitt'water" intnpretation, will! h allow~ for impeachment of~itting officers fOI" offen~t's cOlllmitted in I'leviou~ ollice~). 302. 3 C:Ol\G. DEB. 574 (1827); rJ Sllpm text accompanying note~ 42-4:~, 8:" 87; 1'.11 t V.D (using term "grand inquest" to describe lower-house impeachment role). 303. 3 CO:'\G. DEB. 574-75 (1827). 304. ld. at 1123-24, 1143. Since there was no impeachment, Congrt'~ avoided the issue of whet he I" (he Vice President presides ovel" the Senate when it is trying him. Sff at", lll!mI note 139 and accompanying text (discu~ing this constitutional dilemma).

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Nineteen years later, a similar situation faced SenaLOr Daniel 305 Webster. The great '<\lhig leader had served as Secretary of State under President Tyler. Now, three years after he had left that post (and four years before he returned to it), \,\'ebster found himself accused of improperly using secret funds."'" The accusations were scurrilous and unfounded, but they were made on the floor of the House of Representatives and received significant attention over the following months."" Some House members, including at least one ,<\rebster proponent, surmised that pursuing impeachment was a possible avenue LO resolve the issue-an interpretation that his attackers were all too happy LO 308 support. Not all of Webster's defenders welcomed impeachment. One WJ argued strenuously that late impeachment was not possible. It was in this context that Representative and ex-President John Quincy Adams made his famous comments defending Webster but upholding late impeachability.'JO On the latter, he said: I take occasion to say that I diffcr with the . . . gentlemen who have stated that the day of impcachment has passed . . . . I hold no such doctrine. 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. 311 Adams's statement was not universally accepted. One colleague mused aloud that removal was the only purpose of

305. For a fair description of the Webster case, see BELK.-';AI'TRI.\L. ",pm nutl' 18 .•1t 151 (opinion of Senator Dawes). 306. CONGo GLOBE, 29th Cong .• 1st Sess. 6:~6 (18·16) (.(;)(t·lIIl'l\( 01 R("p. CJ. Ingersoll). 307. The committee appointed to invt"stigate tht" lIIaltl'r rdl'a't'd ib "t"port III JIlIIt·. in which it declared that "there is no proof in relation to any of tht· ehargl~ tu IlIIp("aeh Mr. Webster's integrity, or the purity of his motives in tht" disehargt' of tltt' dlltlt"' of III., office." Id. at 946. 308. See, e.g., Uf. at 636 (statement of Rep. CJ. Ingt"l~oll) (.ltIacklllg Wl'b,tl'r ;lIId wondering aloud whether Webster's allegl'd ofTenst"s -will b.. dl'l'JIIt'd Impl'.Jeh.lbl .. misdemeanors in office"). 309. E.g., id. at 638 (statement of Rep. Bayly) (-I wOllld likt" tu knO\, ho'" \UII can impeach an officer. when he is no longer an officer?-); /If. at 6·10 t-1;ltt'lIIl'lIt uf Rl'p. Winthrop} (agreeing "ith Bayly). Bayly "~1S a O.. mocr.1t alld lllll~ IIUI a partb<1II of Webster'S; he apparently disagreed only "ith the more sCllrrilol~ .lSpecb of IlIgl"~II" charges. See id. at 638. Wintllrop was a Whig. 310. Id. at 641 (statement of Rep. Adams) (deft"lIdillll W.. b.ll'r 011 IIIl'nb bUI disagreeing with Rep. Bayly on late impeachmt"nt). 311. Id.

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impeachment, and so late impeac h ment rna d e no sense. Adams responded eloquently that disqualification is a worse punishment than removal and that without late impeachment, the offender could skirt it: [E]very officer impeachable by the laws of the country, is as liable, tw'enty years after his office has expired, as he is whilst he continues in office; and if such is not the case, if an officer could thus ward off the pains of impeachment, what would be the value of the provision . . . ?313

Webster was never impeached. He did not seem particularly anxious to try the impeachment process as a method of clearing his name, and he was able to end the controversy by releasing documents that clarified his role.'" Still, this episode shows that late impeachment was on representatives' minds, even when it was far from likely to occur. These two cases thus provide a glimpse into congressional understanding of late impeachability during this time, and show that it had substantial support.

3. Whittemore and Deweese Article I, Section 5, Clause 2 provides: "Each House may punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.""·' This presents a keen analogy to the issue of late impeachment-it begs the question of whether an ex-"member" can be punished, just as Article II, Section 4 begs the question of whether an ex-civil officer can be impeached. In 1870, the House of Representatives used its Article I, Section 5 power to censure Representatives Benjamin Franklin Whittemore and John Deweese for selling commissions to the Naval Academy.3lti The House had prepared to expel them, but

312. Id. (statement of Rep. Bayly) ("Is not the judgment, in cas,' of imp"adllnellt, remo\"al from office?"). 313. Id. (statement of Rep. Adams). Adams appeared to be talking mort· abollt himself than Webster. Adams also mentioned Presidents as being impeach.lbl,· ,Iltt" leaving office, and his own tenure had expired almost twenty year.. before th". Th,,,,' discounting Adams's statement in later years have thu~ portrayed his pmilloll as .1 contrarian conceit. See in/ra note 367. 314. See supra note 307. 315. U.S. CO:'-lsr. art. I, § 5, d. 2. 316. CO:\G. GLOBE, 41s1 Cong., 2d Ses.,. 1544-47 (1!l70) (renmling ""011111011 condemning "Vhiuemore's conduct as unworthy ofa represelllalive of the 1)('01''''); ,,{ .It 1616-17 (recording resolution condemning Deweese's conduct as unworthy 01 .1

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their resignations mooted this effort. 51 ; Still, the House unanimously concluded that it could censure these "members" 516 even after they had left Congress: The Deweese case, the second of the two, spurred another question-whether the House could investigate members from previous Congresses; while vVhittemore and Deweese had left the present Congress, they had been members of it.51~ There was serious debate on this question, with no conclusive answer.""':<> In wrestling with this issue, Representative Bingham, the author of the Fourteenth Amendment, stated tl1at it was "perfectly clear" to him that the House could not pursue ex-members of previous Congresses.321 Bingham added, however, that "there might be some room for inquiry" over the power to impeach an ex-member but for the fact that the Blount case had established that legislators were not civil officers subject to impeachment.n~ Bingham believed that Congress could not attempt to punish its ex-members but was less limited in its ability to pursue late impeachment of civil officers. 4. Delahay Judge Mark Delahay was impeached in 1873, when the House adopted a resolution of impeachment proposed by the Judiciary Committee.323 Delahay was alleged to have funneled $32,000 from a confIscation case to a relative, but the impeachment rested solely on "the most grievous charge, and that which was beyond all question[:] that his personal habits unfitted him for the judicial office, that he was intoxicated on the bench as well "324 aso. ff.

representative of the people); Sri' also 2 HI:-IOS, slIpra nOlI: 2i9, al i96 (d<">Cribmg condemnation of Deweese as censure); id. al830 (saml: as 10 \\1Iilll:mor<:), 317. See id. at 1544 (Whittemore case); id. al 161 i (DI:\\'n-s1: casd. 318. See ill. at 1547 (vote on Whittemore); id. al 161 i (VOII: on DI:\\'l'nt'), 319. See id. at 1617 (statemenl of Reprcsl:llIalh'l: Logan) (raising qUl'S11U1I of investigating committee's jurisdiction). 320. See id. at 1617-22 (recording deball: on jurisdiction of ill\'l'Sligming conllnittl:l'. including indecisive voting on motions). 321. fd. at 1618. 322. !d. 323. CONGo GLOBE, 42d Cong., 3d Sess. 1900 (l8i:~). 324. fd.

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Regardless of whether being a drunk is a high crime or misdemeanor, as alleged by the resolution,'12'\ the important l~lct is that Delahay resigned before the House could draft specific 1 articles of impeachment and bring the case to the Senate.'2 ' The House let the matter drop without any discussion on the record. If anyone took this to mean that the House did not think that it could pursue a late impeachment, however, he was proven wrong three years later. 5. Belknap The 1876 case of Secretary of War William Belknap is the single most important precedent in the realm of late impeachment. The House impeached Belknap a few hours after he resigned, and the Senate tried him. The House unanimously voted, and the Senate ruled specifically, that resignation could not terminate the congressional impeachment process. Unfortunately for those seeking clarity, the Senate jurisdictional vote passed by a simple m<~ority. The minority members who lost felt strongly enough about their position that most voted to acquit Belknap on this issue alone. Enough did so to prevent the Senate from obtaining the two-thirds vote necessary for conVICtIOn. Still, there was enough support for late impeachment that the five-month-long trial went fonvard on the merits. Moreover, the final vote was very close, suggesting that a more egregious case might have yielded a conviction. Belknap was connected to a kickback scheme involving western trading posts. The Secretary of War granted post traderships, and they were lucrative positions. In 1870. Belknap appointed Caleb Marsh to the tradership at Fort Sill. Oklahoma but asked him to make an arrangement with the old post trader. John Evans, to protect the latter's property rights in the existing buildings and stocks at the fort.'127 Marsh arranged to allow Evans to continue operating the post in exchange for $12.000 a year in cash-half of which Marsh paid to Belknap's wife. 12K The

325. Id. al 1899. Although labeled as high (Times and misdeml·'IIIOI~. many of offenses for which federal judges ),a\'e been impeached ami convicted Uelll'r fil broader lerm of "misbeha\'ior" specified in ArtIcle Ill. ~ I. Srr
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Belknaps eventually received over S20,000 from the 329 agreement. The House Committee on Expenditures discovered the entire arrangement six years later. 3 :llalc impeachment, see infra text accompan)ing notl'S 496-50 I. and argucd Ihal Ihc 1I011>l' should take its time. 4 CONGo REc. 1431 (lS76) (statemclII of Rcp. Hoar), 336. 4 CoNG. REc. 1433 (1876) (unanimous appro\-J.I of rl'>Oltnion of impeachment); id. at 1431 (statement of Rep. Bass) (arguing thaI il \,.1> for thc Scn.. lc III decide jurisdiction). 337. BEL&'1AP TRIAL, SIIpra nOll' IS. at i\~ Bl·SIISEU.. lupm nOll' 16. al 169-70.

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corruption-were anxious to exploit that corruption again in the 1876 campaign. The Republicans felt pressured to come out 3 strongly against executive corruption as well. :1l1 This explains the lack of even political opposition to late impeachment in the House. Once the case reached the Republican-controlled Senate, however, the motives changed. The vote in the House had been a affair, a cost-free way for members of both parties to condemn Belknap and pass the unpleasant constitutional issues to the Senate. But the Senate actually had to try the case. Facing the prospect of a lengthy trial that might dominate the campaign, the Senate first had to decide whether to postpone the case until after the election. \.\'. No Democrat wanted to postpone the case, and most Republicans evidently just wanted to get the case over with; the motion to postpone the case was rejected unanimously.'I-IO At this point, Belknap's lawyers moved to dismiss the case for lack of jurisdiction; before reaching the merits, they wanted to litigate the late impeachment issue.
More than two weeks of wide-ranging argumenL<; on the question of late impeachment ensued, followed by two weeks of senators' reciting their own conclusions. III The debate covered virtually every point raised in this Article. Whatever political motivations underlay the final vote, no senator could have

33H. See B~:L1;."AP TRIAL, supm note 18, at 14-15; BlfSIlN~:I.I., lIl/ml noit' \(i, at \(ill (de,cribing political climate in Congress in 1870). 339. .'Ie,. BELK.'AP TRIAL, Ill/1m note 18, at II. 340. Id. at 15. 341. BRK:-IAP TRIAl., sU/Jm note 18, at 6; Bl'SII:-l~:LL, lIl/mlnote I Ii, at 170·71. 342. Sef' BELKNAP TRL\L, IIlpm note 18, at 6 (raising argulIlent); III. at :{:.8-liO (opinion of Senator Nonvood) (rejecting it while voting to convict). :H3. 1£1. at iii, 2. 344. Id. at 15 (beginning of jurisdictional argulllents on April 28); III. .It 72 (elld 011 ~-Ia) 14); uf. at 77 (beginnmg of recitation 01 opinIOns on May 15); III. at 1:.8 (end 011 M.I) 29).

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complained that he had not heard a well-briefed and we 11grounded constitutional argument. :1-15 In the end, on May 29, the Senate voted thirty-seven to twentynine that it had jurisdiction over the late impeachment."6 The majority Republicans-Belknap's party-voted twent)'-six to thirteen against, while the Democrats were twenty-four to two in 347 favor. Some might take this unanimity among Democrats. coupled with significant support among Republicans. as a sign of the case's strength as a precedent in favor of jurisdiction. On the other hand, it might just reflect Democratic partisanship and the pressure some Republicans felt to denounce Belknap.l" The Blount case is now regarded as settling tlle issue tllat onl), civil officers are susceptible to impeachment."~ The House managers and several senators voting in favor of jurisdiction in Belknap's case, however, subscribed to a limited view of Article II, Section 4 and concluded that the only limits inherent in impeachment were those contained in tlle common-law term "impeachment" itself.:I:.o To the extent tllat proponents conceded that Article II, Section 4 does limit impeachment to "officers," they argued that this was a limit on who could commit impeachable offenses and not on when offenders could be . d .351 me

345. CJ. id. at 137 (opinion of SenalOr Jones of Florida) (-I1.kl \1.> (l".t\(· In !Ill"" who shall succeed us the full benefit of e\'el)' argumelll which h;1.> COlllribUIl"d 10 !ltl" conclusion at which we have arrived."), At least one partisan observer disagreed in mid·May Ihat Ihl' dd)atl" "~I.>"(\. The Republican New York Tribun<" reported: -It seems 10 bl" gl"lIl"rall\' conn.-dl"d Ih.tI Ihl" managers are no match for the brillialll array of counsd l"mpIO\l"d b\' thl" depo!>C'd secretary, and the general expectation is that the senall" "ill decidl' tI h.L' no jurisdiction." The Belknap Impeacllmml Trial, 3 CENT. LJ. 300. :~Ol (1876), 346. BELKNAP TRIAL, supra nOle 18. at 76; Bl'SHNEU~ supra nOll' 16. OIl (7fi, 347. BUSHNE~ supra note 16. at 176 (breaking down ,'Otl' by pan) (1Il~I, A (111.L'I· Republican, Anti-Monopolist Newton Booth, also voted agC' managers); id. at 80 (opinion of Senalor Wallacl"); ,d, al 86 (opillllln of Sen,tlur Sherman); id. at 88 (opinion of SenalOr Edmunds); ,d. al 1:~6 (opilllon of Sen,tlor Saulsbury); see also note 167 and accompallying lexl. 351. E.g" BELKNAP TRIAL, supra nOle 18, al 34 (al),,\IIII<"1I1 of IIO\l.>l· lII,magl" ..... >. Ill. •tI 79 (opinion of Senator Thurman).

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Structural concern about giving the impeachment defendant or the President full power over congressional jurisdiction was another popular argument used in favor of jurisdiction. As one senator incredulously stated the counter-argument: [I] t is gravely insisted that . . . it matters not whether the office be vacated by self-amotion, or by judgment of Ihis COl\l'l, or by executive order . . . . The offender is removed, out of office, and cannot be disqualified, cannot be impeached, evell though as President of the United States he had committed treason!' ,'.~~<,

Still others focused on the deterrent effect that late impeachment could have on other officials.""~ Among those voting against jurisdiction, the most popular argument was that a reading of Article II, Section 4 implied a restriction on the timing of trials in iL<; use of the term "officers,,3,,4 and the prominent role of removal. ",', Given the majority's limited reading of this article and section, some opponents also raised the concern that if impeachment were not limited to current civil officers, any private citizen could he subjected to impeachment.""!> PropOnenL'i of late impeachment

352, fd. at 359 (opinion of St>nator Norwood); 'fp (IL", Ill. at 7H (opinion 01 Sen.lto. i'.kDonald); Id. at 79 (opinion of Senator Thurman); III.•It HI (opinion of Sen.lto. Wallact»; id. at 90 (opinion of St>nator Edmunds); >FP (ILIlI \/llml Part V.D. 353. Eg., BELK.':AP TRIAL, supra nott> 18. at H7 (opinion of Scnator S.IIKcnt) ("" st>ntt>nce to disqualification . . . operates for the public safety not only by the t'X( h"ion of tht> criminal from office but as a warning and examplt- to all public OllitT.', tendnlK to purity in ollice."); id. at 93 (opinion of Senator Maxey) (stating that di'qualification" inflictt>d "chiefly, by fearful example. to teach all men that American institutiom .1IId the perpetuation of free government, of the people, by the people, and for the peoplt-, demand purit), in ollice"); see (ILso supra Part V.A (discussing detern'nn·). 354. See, P.g., BELK.'\;AP TRIAL, 5lllJra note 18, at 29 (argument of defensc (oume!); III at 82 (opinion of Senator Morton); id. at 115 (opinion of SenalOl Eaton); Ill. .11 12(i (opinion of Senator Ingalls); id. at 132 (opinion of Senator BOlllwell). Spp (IL", \/llml l'.ul IV.B.2 (discussing textual interpretations of constitutional illlpeadllllt'nl dause, ra.,inK this argumt>nt). 355. See, e.g., BEI.K.':AP TRIAL, supra note IH. at H2 (opinion of Senalor :o.lorton); III at 85 (opinion of Senator Frelinghuysen); id. at 115 (opinion of Senator Ealon); III, al 124 (opinion of Senator McMillan). See (11m wlml Part VI.B.2 (disCl.",inK It'xlll.11 interpretations of constitutional impeachment clallses raising thi, arK"l1lenl). 356. E.g.• BELK.'\;AP TRIAL, Slllira note IH. al 26 (argulllenl of defcnse ('oume!); III .It 127 (opinion of Senator Cameron) ("If the Senate has juriMliction 10 Iry one priv.llt· citil.en upon illlpeachment it has a right to II} any private rous power to illlpt>ach a man becaust> he has onct' been in olliet'. it give' it the power to impeach him also because he is in danger of gt'ttillK illto ollict'."); III.• It II". (opinion of Senator Eaton); see (Il5O mlirfl note 2:~ and accolllpanring texi.

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naturally disagreed that their \'Jew necessilated lhis implication,357 The two sides also tussled over precedents and alllhol'ilies, Both sides used the records of the ConstilUtional Convemion l ...' and the state ratification debates,:tOli BOlh sides used the Bloum case as well, Opponents of late impeachmelH in the Belknap case argued that the Blount case provided a clear precedent against late impeachment.:lfoO Proponents relorted thar Blaum's case stood against only the impeachabilit)' of senators and nOled that Blount's defense had conceded thal resignation could not 361 stop impeachment. Opponents ShOl back thar such concessions were dicta set forth by counsel who had nothing to lose by narrowing their argument as much as possible,~t Justice Joseph Story's commental)' provided another prominent source of disagreement.36~ In his writings, Story had made some statements against late impeachmem, which opponents latched onto almost gleefully; ....• this spurred proponents to cite St0l)"s mitigation of his own commelHs,"'~ as well as pro-late impeachment comments fi'om others such as William Rawle 366 andJohn Quincy Adams,"";

357, E,g" BELKNAP TRIAL, supra nOll' 18, at 34 (argulllelll of IloUM' lll;III,lge~). 358. Eg., Uf. at 38-39 (argumenl of defense counsd); ul, al :,3, 57,58 (;lfgulllelll of House managers); ill. at 98-99 (opinion of Sl'nalor Howl'); ,d. ;11 IIS.:W (OpIllIOU of Senator Allison); id. at 156 (opinion of Sl'nalor Cr.I!,oin). /Jill <.... ul. al 1-1:, (OpIIIlOU oC Senator Booth) (making anti-cI~('d III !';Ift

III.C.l, supra. 359, E,g., BEl.KNAP TRL-\l., supra nOll' 18, al 120-21 (opiuioll oC St-llalOl Allbtm); Ill. at 150 (opinion of Senator Dawes). The ratificalion debales are di!>CI"-M'd ill 111(' I('XI accompanying notes 151-58, supra. 360, E,g., BELKNAP TRiAl., supra nOll' 18, al 28 (arguml'lll of dt'Ct'nM' C al is>ud. 363, See infra Part VIlA. 364. See, e.g" BELK.'1AP TRL-\l., supra nOll' 18, al :iO, 40, 42 (argulllt'JI! of d('Cl'll-'<' counsel); see also supra lext accompanying nOll'S 496-50 I (I) uOlillg SWJ"" ,s ,1;lIt'lIIl'lI1». 365. Eg" BELKNAP TRIAL, supra nOll' 18, al 152 (opinioll oC St'llawr Daw ..... ); "'I" abo note 503 and accompanying lexI (quoling Slory's can-aL' and OIh('r COIIIIII('JI!.ln· Oil Story). 366. Eg., BEl.KNAPTRIAl" sulJra nOll' 18, al III (opinion oC S('II'lIor ~llIchdl). R;I"I(' is quoted infra in Part VlIA. 367. Eg., BELK.'1AP TRIAl., supra nOll' 18, al 112 (opillioll oC St'nalOr ~hldl('Il). Adams is quoted and discussed, supra, in Ihl' Il'XI accolllpaming 1I01l'S :HO-I:i. Ad;lIm "~L' not a unanimously respecled amiJorily. As defense cOllnsd Cor lklkuap. dl>IIII"'lIIg Adams's comments on lale impeachmelll, pilI il:

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With the jurisdictional question out of the way, the trial proceeded for two more months before the final voting began on August l.3till Belknap continued to push the jurisdictional argument,369 though, and despite the lengthy and detailed testimony compiled about Belknap's activities, the final decision on the merits reflected the initial decision on jurisdiction. Belknap was acquitted by a thirty-seven to twenty-five vote on the closest charge, five votes away from the forty-two to twenty vote needed for a conviction. Of the twenty-five senators voting to acquit, twenty-two (one Democrat and twenty-one Republicans) indicated that they did so because Belknap had already len 370 office. Only three senators (all Republicans) indicated that they had gotten to the merits and actually believed Belknap was m not guilty of an impeachable offense. Thus, taking these senators at their word, it seems that Belknap was acquitted only because he was being impeached after he left office. In sum, the Belknap case provides a precedent that federal officials can be impeached and tried after they have left oflice. Nevertheless, this precedent is binding only to the extent that the Senate wishes to be bound.172 Critics of the Belknap precedent note, correctly, that the minority voting against jurisdiction did not feel bound by the m,~ority, and Belknap's acquittal was necessarily based on the f~lCt that his was a latc m impeachment. On the other hand, after the vote on jurisdiction, the minority failed in an attempt to stop the trial on grounds that a two-thirds vote to convict could not possibly Mr. Adams of course opposed what everyhody else bdieH'd to be tlIH', Nothing indeed would have giH'n him greater pleasure than to be IInp('.\( hed It would have given him an opportunity to come over here alld I'ly ,Iho\lt 111111 right and left. His organ of comhativelH'!>.' wa~ always in .1 ,t.lte 01 (hllllll( inflammation. BELK:'-IAI'TRIAL, suj)m note I H, at 69. 368. Sa BELK.'1APTRIAL, sujml note IH, at 342 (lIIentioning the heglllning 01 \ollng) 369. /d. at 170 (Belknap's Answer after defeat on juri~dictional I~S\l('), 370. Bl'SII:-:ELL, "'I)m note 16. at IH6 (de,crihillg .lIId t.lllying vote); V·\:-, I \\~H Ii.. FI:-:KELMA:-:, ",pm note I, at 193 (same). 371. Bl'SII:-:ELL, ",pm note 16. at IH6 \de~crihing and tallying vote); V·\\; I.\'>-\H Ii..FI:'-IKEDIA:'-I, sul)m note I, at 193 (same). 372. Sa 2 Archbald Tna/., sul)m note 269, at 1653 (senator voting III I.I\'(}\ 01, impeachment on hasis of Belknap precedent); G~:RIIARI> I, \/l/ml note 12. .It III (discussing congressional prerogative to revisit constitutional pn'('('dent~); 'I Ne.t1 Kumar Kat)"al, ImlJfllchmp1l1 as CongrrmOlllll COllllllulullla/ /nlnjnr/allflll. (i:~ L\\\" Ii... CO;';TEMP. PROBS. 169, 183-88 (2000) (arguing that rationale, for ,Iarf' r/('(nll .11(' nol compelling in legislative context). 373. Sff, f.g., Bl'SIIi'ELL. supm note 16. at IHIHlH (de~('nhlllg IlIIpOlI.IIH (. of jurisdictional question to senators voting to acquit Belknap),

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374 result. In any event, four senators who had voted against jurisdiction nevertheless considered themselves bound by the m m~ority decision-three of them voted to convicL Furthermore, there is necessarily a difference between an acquittal and a dismissal. The experience of a five-month trial surely had more than just nominal significance to Belknap."6 His guilt was established, even if he was not subjected to punishment. By deciding only after a full trial to acquit Belknap. the Senate essentially decided that he should not be convicted. not that he could not be. Jurisdiction and conviction are separate questions. The Constitution bars "conviction" with less than a super-majority, but does not similarly bar "trials," and so a simple majority properly decides preliminary matters like m procedural rules, jurisdiction, and dismissal. For his part, Chairman of the House managers Scott Lord fclt that despite Belknap's acquittal, "great good [would] accrue from the impeachment.,,378 Specifically, Lord felt that "it ha[d] been clearly settled . . . that persons who have held civil office under the United States are impeachable" and that the case had given "the public mind clearer views of official accounL1.bility.""'-' Manager Hoar agreed and contended that the Belknap impeachment would ensure that no one in Belknap's position would repeat his offenses.s-'
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The great object, after all, was that his infamy might be rendered conspicuous, historical, eternal, in order to pre-Yellt the occurrence of like offenses in the future. The purpose was . . . to teach [other officials] that if they should fall under like temptations they will fall, like Lucifer, never to rise • agam. ~81

As a practical matter, if Belknap had presented more of a danger to the Republic-say, if his crime had been more

treasonous than venal or if he threatened to serve in the federal government again-the twenty-five senators voting against jurisdiction and conviction might not have stood their ground. Only two needed to change their votes for Belknap to have been convicted, assuming that everyone reaching the merits would have voted to convict in such a case. It also appears that some senators were swayed by the fact that Belknap faced criminal liability that might result in a sentence of disqualification. '"2 IL is impossible to know for sure, but if 1876 were not an election year, if the partisan balance in the Senate had been different, if resignation had come after impeachment rather than hours before, or if other facts that lack constitutional significance had been changed, the Senate easily could have reached a different result.'l>l3 More to the point of this Article, even if the weakness of the majority in favor of late impeachment in the Belknap case prevented Belknap's conviction, it did not prevent his impeachment and trial, and it certainly does not legally bar future late impeachments. 6. Archbald Judge Robert Archbald was impeached and convicted in 1912 for corruption.""' At the time of the impeachment, Archbald sat on the United States Commerce Court as a circuit judge, but six of the twelve specific articles of impeachment covered conduct

3RI. Turley.
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he had committed as a district judge.""~ Thus, Archbald's case squarely presents the issue of whether a sitting officer can be impeached for acts perpetrated while holding a former office.'".... If late impeachment is acceptable, then this sort of impeachment should be also. If this sort of impeachment is barred, then so too is late impeachmenr.""; Unfortunately, the Archbald case does not provide a definitive precedent. To be sure, the House debated this version of the late impeachment issue. Though Archbald's Answer did not raise it,= both sides briefed it cursorily""'9 and argued somewhat more thoroughly at closing, essentially summanzlIlg and recycling the arguments from the Belknap case.'')(l Ultimately, Archbald was acquitted on all of the articles of impeachment that related to conduct in his fonner office, as M well as two of the articles concerning his current posr. The closest vote among the district court articles was thirty-six (0 twenty-nine against.~92 Several senators filed written opinions, and many addressed the timing issue.5~' Three senators entertained some doubts about late impeachment and voted to W1 acquit rather than set a precedent that they did not wish to ser. Six others opposed late impeachment ouu·ighl."·~ Five were

385. BUSHNELL, supra note 16, at 219. 386. This issue is cO\'ered in more detail in Part V.E. mpra. 387. This does not mean, cOIl\'ersely, that if Archbald "~I.!> illlp~achabl~ Cor th~ offenses, then all late impeachments would be acceptabl~: thc fact that Archbald "~I.!> .1 sitting officer might have been detenninau\·e. S« supra Pan ".E (d~nbing "Whitewater~ view that allows impeachmeJll for old offcnst.". bllt onl\' for '1Il1ng officers). 388. See 1 Archbald Trial, supra note 269. at 44-59. 389. See 1 id. at 1062-64 (managers' brieO (arguing that jobs \\'~fl' conllnuUlI.!»: 1l1"11 1l01-{)4 (defense brieO (surveying some history of I:lll' illlpcaclllllclII and argUIng against "absurd results~ it would eJllail). 390. See 2 id. at 1412-13. 1424-25. 1470.71 (manag~rs' argulllcnts): 2 Ill• •11 I:,OS-IO. 1545-47 (defense arguments): su also Bl·SII!'EU.. supra notc 16. at 2:~·1 (lII~nllunlllg timing argument by Archbald's counsel). 391. 2 Archbald Trial, supra note 269. at 1622-46 (chronicling \utlllg un ,III amd~J. 392. Id. at 1634. 393. Id. at 1650.78 (opinions). Some cursory opinion, Wl'r~ "ff.. r~d dunug th~ voting. E.g.• id. at 1634-36. 1647-48: su also Bl'SH!'Ell.. supra uotl' 16.•11 2:~S buncnug opinions on impeachmeJll after lea\ing office): Ooughcn\'. supra uutt· :{2. ,II 72·7:~ (noting opposition to and suppon for late impeachabilit\, in Archbald G\>l'l, 394. 2 Archbald Trial, supra note 269. at 1634-35 (opinion of Senator Uorah): 2 Ill••11 1647 (opinion of Senator du Pont): 2 id. at 1675 (opinion of Senator SinllnUl\», 395. 2 id. at 1635 (opinion of Senator Bryan): 2 /d. •11 16:~:>-:~6. IIi:, I ("punu/\> of Senator Works) (relying on -good beha\ior" languagc ratht'r than IlIIpl·.. c1l1n~nt clauses); 2 id. at 1638 (opinion of Senator Brandcged; 2 Ill• .. t 16:,:>-:,6 (opllllOn of

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undecided about late impeachment and abstained as a result. ,.... Most significantly, though, seven senators found this particular form of late impeachment appropriate, although three of them 397 voted to acquit on the merits. Assuming (as we reasonably can) that at least one other senator voting to acquit saw no problem with late impeachment and voted solely on the merits, ".x a majority of the senators voting saw no problem with latl" impeachment. At the very least, though, given that Archbald had already been convicted for other, more recent conduct, this issue "had no real bearing" on the case, as even an opponent or late impeachment has concluded."'"' 7. English Judge George W. English was impeached in 1926 ror tyrannical, corrupt, partial, and abusive conduct on the bench. "" He resigned six days before his trial was to begin in the Senate. '0' The House resolved that, in light of the resignation, it "d lid I not desire further to urge the articles of impeachment.""rl Thl" House managers informed the Senate that although they were recommending termination of the proceedings, they were or the opinion that "the resignation of Judge English in no way affects the right of the Senate, sitting as a court of impeachment, to hear and determine" such charges. '01 Indeed, three senators Senator Crawford); 2 id. at 1660 (opinion of Senator McCumber); 2 ul. at 1(;(;1 (opin,on of Senator Catron). 396. 2 id. at 1621 (statement of Senator Clarke); 2 id. at ((;:~2 (stat('ment~ 01 Senators Stone and Swanson); 2 id. at 1634 (statement of Senator Smith of C("orgia); 2 id. at 1636 (statements of Senators Newlands and Foster). Stone expressed "grave dOllbt" about late impeachability, given the "grave abuses" it could spur. 2 ul. at 1(;52. 39i. 2 id. at 164i (opinion of Senator Owen) (allirming late impeachabilitv,.11 le."t with regard to sitting officers); 2 id. at 1648 (opinion of Senator Poindexter); 2 III.•It 1650 (opinions of Senators Root and l.odge) (affirming late im)leachability but votillg to acquit on merit~); 2 id. at 1653 (opinion of Senator Gronna); 2 ul. at ((;(;3 (opinioll 01 Senator Cullom) (allirming late impeachability but voting to acquit on merit~); 2 III. (opinion of Senator Cummins). 398. See, I'.g., 2 Id. at 1658 (opinion of Senator Oliver, voting appan'ntly ~ol(,\\' on the merits). 399. Bl'~II:-;ELL, 51l/Jra note 16, at 238-39. 400. ProfPl'dillg5 oj /hl' UTll/l'd S/a/I'", Sma/I' IfI /hl' Tnal of Impnzrhmm/ of (;,mKI' 1\' English, Dis/ric/ Judge oj /hl' Ulli/ed S/a/e5 Jor /he Em/pm DIS/ric/ oj fIllflOH, S. DOL. No. m)·I77, at 3-15 (1926) [hereinafter Ellglish Trial] (recording the articles ofllnpeacllment), 401. Id. at i6 (mentioning tl1
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argued that the resignation should not prevent the Senate from passing judgment on English's conduct and punishing him as appropriate.- Eight others responded that while they agreed that the Senate retained its jurisdiction, they wanted to respect the managers' role as prosecutors and drop the case if the House no longer wanted to pursue it.~o~ As one such senator put it: The Federal Constitution says that in cases of this kind the House of Representatives shall have the sole power of impeachment . . . . In view of that language, it seems to me that in this case no choice is left to us. . . . but, at the same time, I am sure that I will be allowed the pd\'ilege of saying that I deeply regret the conclusion that the House of Representatives has reached.-I06

No senator suggested that it would have been impossible or unconstitutional to proceed if the House had not "desired" to do otherwise:")7 Indeed, one senator noted, without contradiction, that he wanted it "distinctly understood" that the case should not provide a precedent tllat a resignation would necessarily terminate impeachment proceedings:"" English was old and unlikely ever to serve in federal office again,""} and tllere was little appetite for pursuing what were, after all, mild offenses relative to the effort and resources required to pursue tllem. l The motion to dismiss the case passed seventy to nine: " This case provides another vaguely positive precedent on late impeachability. Clearly, the House and tlle Senate felt that they could have proceeded with the case. Had tlle House believed that it had no authority to proceed or that tlle Senate might reach that conclusion, it would not have passed tlle carefully worded resolution that it did. If the Senate had so concluded, its debate would have taken on a much different tone. 404. English Trial, supra note 400, at 81-85 (speeche~ of SenalOP.> B1e;~ ;lIId Dill); III. at 89-90 (speech of Senator Wheeler). 405. Id. at 85-89, 9()"92 (speeches of Senalon; Norris, Reed of Pen 11>'\ 1\.111101, Reed of Missouri, Bruce, Copeland, King, Fletcher, Bordh). 406. Id. at 88 (speech of Senator Bruno). Bul St't' III. at 89·90 (speech of Senawr Wheeler, arguing that trial could and should continue regardt....,." of the II00L..... " decision). 407. Bm see id. at 91 (speech of Senator King) (alluding 10 Ddah..,· G~ and suggesting that resignation was treated there as Mipso facto tennillating the Gue"). 408. Id. at 91·92 (speech of Senator Fletcher). 409. See id. at 92 (speech of Senator Borah). 410. Id. at 92-93 (recording the roll call \'ote on order of disllllJiS.,t).

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8. Aborted Cases On numerous occasions, the target of an impeachment inquiry resigned before the House could take a vote. III In every one of these cases (except, of course, that of Belknap), the House opted not to proceed. The most famous example of this. of course, is the aborted impeachment of President Nixon. The others, less famous, either concern judges not worth pursuing or more prominent figures against whom the cases were not particularly impressive. 112 None of these cases contains evidence of a congressional understanding that late impeachment is impossible, but several of the cases spurred debate on the question. For example,Judge Edward Durrell resigned in January 1875 after the House Judiciary Committee passed an impeachment resolution against him.1I3 The House discontinued the proceedings by a 128-69 vote after a discussion on whether the House had any power to proceed. III Representative Beqiamin Butler, who favored impeachment, argued after the resignation that impeachment could proceed but should not, given Durrell's advanced age. w. Representative Luke Poland opposed impeachment on the merits but did not believe that resignation presented any sort o/" obstacle to the House proceeding, if it so chose. III. Representative Lyman Tremain, who also opposed impeachment on the merits, expressed "serious doubt" as to the 1I7 House's power to proceed. Given that the only people who spoke in favor of the power of late impeachment opposed it on the merits in Durrell's case, the House's vote here does not represent any sort of statement against the constitutional power of late impeachment. Similar statements were made in f~lvor of

4 I I. BCSII:'\ELL. SIIpra nott' 16. at 39 ("More than fifty federal judges have n',ignt'd while under investigation or after their impeachment had been ITCOIJllnt'nded to tht' House of Representatives. and further action was not pur~ued againstthelll."). 4 I 2. See bll'EACII~IE:\T. supra note 403. at 691-92 (Judge Stephens); ul. at 71 () (Jmlgt' Irwin); id. at 720-22 (Judge Durrell); ld. at 72()'28 (Judge Bustt'ed); ul. at 85:-I-5Ij (Judge J'lanford); id. at R59-61 (Justice Wright); id. at 880-81 (Secretary Mellon). 413. /d. at 720. 414. fd. at 720-22; see also 3 Co:,\c;. REC. 319-24 (1875) (recording debate and mtt·). 415. 3 (:0:,\(;. REC. 320 (lR75). 416. It!. at 322-23. 417. Iii. at 320-22.

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the power of late impeachment in other cases in which the merits did not warrant proceeding.~IK It is undeniable that this series of cases indicates that late impeachment rarely will be deemed worthwhile. On the other hand, it does not indicate that Congress is powerless to proceed in such cases. By analogy, the vast majority of criminal prosecutions in this country end in guilty pleas, with no trial and with reduced sentences but at a tremendous savings of resources on the part of the prosecution and the courts. Given how timeconsuming and distracting full-blown impeachment proceedings tend to be, it is no surprise that late impeachment is typically considered not worth the effort. Just as the reality of frequent plea bargains in the mass of minor criminal cases (and the occasional big one) does not affect the prosecution's ability to go to u'ial if necessary, the reality of impeachment practice does not change the potential for late impeachment. Congress, moreover, docs not blithely concede its jurisdiction. The biggest limitation that the Senate has allowed to its jurisdiction came in the Blount case, in which it was decided that senators were not impeachable. But the Senate's decision (notably, against the House's conclusion). while constitutionally defensible, shows a sort of self-interest that would not necessarily duplicate itself in the impeachment of a former executive or judicial officer. m B. State Impeachment After 1787

After 1787, the states continued to provide instructive examples both for and against late impeachment. Because the language of the federal Constitution was already set, state precedents based on dissimilar state constitutional language represent less persuasive authority. To the extent that state language did correspond to federal language, the precedents are inconclusive. 1. Post-1787 Changes to State Constitutions In the immediate aftermath of the federal Constitution's adoption, several conventions rewrote their state constitutions, 418. E.g., bfPEACHME:>''T. supm note 403. at 728 (Judge Bmlc:c:d); III. Hanford); id. at 861 (Justice Wright). 419. See supra note 197.


S55 (Judgl"

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including the provisions on impeachment contained therein. In some cases, states adopted specific language from the federal Constitution. Because the impeachment language in Article II. Section 4 of the federal Constitution was so poorly drafted, however, most states adjusted it. 120 In some cases, it is instructive to see how states with constitutions providing for impeachment before 1787 changed their impeachment provisions after 1787. Other examples are not instructive: Massachusetts and New Hampshire still use their pre-1787 constitutions, while North Carolina did not change its constitution until after the Civil War. a. Georgia

Georgia was the first state to adopt a new constitution after 1787. Georgia's earlier constitution had not provided for 421 impeachment at all. In 1789, though, the state wrote a new constitution that essentially tracked the federal Constitution, and contained the following impeachment provision: "[The House of Representatives] shall have solely the power to impeach all persons who have been, or may be in office."122 That explicit authorization for late impeachment was reaflirmed in m seven subsequent constitutions and was not removed until the most recent constitutional convention in 1983. Besides providing evidence that late impeachment was we1l-regarded in 1789, the Georgia provision improves on the form of the federal Constitution in two respects. First, unlike Article II, Section 4, it states directly which people are susceptible to impeachment. Second, it definitively indicates that late impeachment is allowed. One could argue that by explicitly authorizing late impeachments, the Georgia Constitution meant to distinguish 420. But see, e.g., IJ'D. C01'lST. of 1816, art. III. ~ 24 ("The Governor. ,lIld all (lvll officers of the State, shall be removed from office. on impeac!unl'nt for. and com')( tlOlI of treason. bribery. or other high crimes and misdemeanors:). 421. GA. CONST. of 1777. art. XLIX (rendering offin'r~ "liable to be c,tlled to account by the house of assembly" but not providing for impeachml'nt). 422. GA. CONST. of 1789. art. I. § 9 (emphasis added); 'ee {liso M~:LVIN II. IIILL.JR .• TII~: G~:ORGIA STATE C01\STITl'TIO;-'; 4 (explaining congrut'nn' bl'tw('ell (;(,OIgl.t Constitution of 1789 and federal Constitution). 423. See GA. CO;-';ST. of 1976, art. III, § 6, 'I I; GA. C01\S r. of 1945. art. III. ~ G. 1 :~: GA. CO;-';S1'. of 1877, art. III, § 6. 'I 3; GA. CaNST. of 1868. art. III. ~ 3. d. :,; GA. C();\1~I. of 1865, art. II, § 3. cL 4; GA. C01\ST. of 1861. art. II. ~ 3. d. 4; GA. CONSI. or I 79/l. art. 1. ~


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itself from the federal Constitution, which, the Georgia framers believed, implicitly disaLWwed late impeachment. But if this is so, then the specification that the Georgia House has the sole power to impeach officers should be read as a resu'iction on the federal House's unmodified sole power to impeach, period. In other words, if the wording of the Georgia Constitution of 1789 indicates that the federal Constitution does not allow late impeachment, it also indicates that the federal Constitution allows every private citizen to be impeached. A better interpretation is that Georgia neither added to nor subtracted from the federal impeachment power but changed and/or clarified it. Georgia removed the "have been in office" late impeachment provision in 1983 because late impeachments seemed irrelevant to the committee charged with redrafting the impeachment section.424 The committee's consideration of the issue, preserved in a transcript, is very illuminating as an example of commonsense (if shortsighted) intuitions about late impeachment DR. PYLES: May I raise another question? What about this . . . against all persons who shall ha\'e been . . . . " What's the point? M

shall have been in This is highly confusing if you say office . . . ." That's almost ex post facto or something. MR. ClARK: How can you impeach somebody who's not in office[?] DR. PYLES: Yeah. Or why. We've got criminal prO\'isions, law, civil law. MR. ClARK: Any understandable background for that, that phraseology, "shall have been"? CHAIRMAN SWEENEY: No. M

MR. TIDWELL: If you look further into what you can do, the consequences are, he cannot hold office ag<\in. That might shed some light on that.

424. See 2 STATE OF GEORGL-\ SElECT Cml~II1TEE 0:-: Co:-:srrn:no:-:Al. !U:\'ISIO:-:. TRA."ISCRIPT OF MEETINGS, 19if-1981, CoMMITTEE TO REVISE ARll(l.£ III. Oct. 29. 19i9. at 29·30 (stating subcommittee's understanding that ka\ing office 'oU\iille(s) the need for an impeachment proceeding").

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MR. HILL: ... Now a person could leavc office and two or three years later something is found out about that pcrson that would be serious enough to warrant an impeachmcnt trial so that he or she could never hold office again .... I don't think the language was happenstance, I think it was intcnded to cover both people in office and former officeholdcrs. MR. ClARK: . .. [1] mpeachment is to put that person out of office, it seems to me, and the idea if he has committed some malfeasance or violation, that there would be criminal support, this falls into COlirt action rather than the ponderous procedure of an impeachment. I just can't sec it ever coming about . . . it clutters lip again and adds questions to the Constitution that is just not necessary. MS. RYSTROM: I agree with you. DR. PYLES: I actually think the impeachment provIsIOn serves as a deterrent or maybe a threat against an ollicer, whether it will ever be carried Ollt or not, the fact that it could be carried out is a pretty viable threat it would seem to lIIe to an individual before he continued to persist in whatever it was that would be heinous enough to warrant impeachment. CHAIRMAN SWEENEY: Especially if he knows that it may come up after he leaves office. MR ClARK: ... I don't think it's e-nough-it's not important enough to quibble about. I don't think it's likely to come up again, so I would be opposcd to leaving the wording in there, I don't think it serves any protectivc purpose at all. CHAIRl\1Ai\J SWEENEY: Well, is therc a motion to drop it? DR. PYLES: I so move. CHAIRl\1AN SWEENEY: All in favor? MS. RYSTROM: I was getting convinced on the- othcr side as this discussion went on. CHAIRl\1Al'\,J" SWEENEY: Four [out of seven colllmittee 12 members present] in favor of dropping thc languagc. ·,

The Georgia late impeachment language, which had survived seven constitutional revisions, did not survive the eighth. The subcommittee started somewhat confusedly: How would late impeachment be "ex post facto"? Why does the availability of the criminal law preclude late impeachment but not regular 425.

I id., On. I, 1979, at 25-29.

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impeachment? Nonetheless, it eventually covered most of the main arguments about late impeachment. Specifically, the availability of disqualification and deterrence were raised as points in favor of late impeachment,i:16 while the practical difficulty of late impeachment and the sU'ong connection between impeachment and removal were raised against it. i:!7 But the subcommittee ignored the significant potential problem that an official could resign to avoid impeachment and/or disqualification-the situation in many actual cases of late . h menL4 8 Impeac The Georgia experience provides an example of constitutional framers deciding as a practical matter whether late impeachment is worthwhile-something that even proponents of late impeachability admit is a hard point to 429 defend. But this article primarily addresses whether the federal Constitution allows late impeachment, not whether states, writing their constitutions from scratch, should include it. For this reason, the most significant point about the Georgia revision is that when the 1983 framers sought to preclude late impeachment, they used language that reflects the federal language: "The House of Representatives shall have the sole power to vote impeachment charges against any executive or judicial officer of this state or any member of the General Assembly. "430 Thus, in Georgia, language setting forth that only officers can be impeached was meant to preclude late impeachmenL 431 On the other hand, its framers' intent was clear, and the change from the previous language was blunt and meaningful. In the absence of such factors, language like this has been held to allow late impeachment in other states. m 9


426. See supra Parts V.B (discussing disqllaliliC:llion) & \·.A (dbCllS>ing d ... l... rr ... nc ... ,. 427. See supra text accompan)ing nOll'S 19·22 (disclIs.,ing roll' of rt'lIIm~II): IIIITt1 VIII (discussing practical considerations). 428. See, e.g., supra Pan VLAA (discussing the Bd"nap c.."d: "'1m Pan \"l.B.2.c (discussing the Ferguson case); see also supra Parts \'.B and \·.D (dil>CIl>.l>lIIg ,Inlrtllral implications of this phenomenon). 429. My own admission of this point. and my rl.'SpOnSl' 10 II. I" d ... t.ulc.-d III Pan \"1II. infra. 430. GA. CONST. an. III, § 7.1 I. 431. See supra text accompan)ing nOll' 425. 432. Examples include the jOl1<."5 (IIIlra texl aCCOmpaJl\1ng not..." ·I·IS-:,Ul. Dmln (infra text accompan}ing notes 451-52). and FlIrchl.'s (IIIlm nOll' ·16-1) c.",...".

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b. Tracking the Federal Constitution Other states changed their pre-1787 constitutions in ways that are significant with regard to late impeachment. South Carolina wrote a new constitution in 1790. Its old constitution had not mentioned late impeachment. The new one did not either, but its wording matched the federal Constitution's impeachment provisions more closely: The governor, lieutenant governor, and all the civil officers shall be liable to impeachment for any misdcmeanor in ollice; but judgment in such cases shall not extcnd further thall to the removal from office, and disqualification to hold any office of honor, trust, or profit, under this state. Thc party convicted shall nevertheless be liable to indictment, trial, judgcment, and punishment, according to law. ""

While they adopted wording very similar to that in the federal Constitution-and presumably sought to construct a similar impeachment regime-the South Carolina framers joined Georgia's in rejecting the confusing wording of Article II. Section 4. Instead, they specified all of the limitations on impeachment in one section and precisely listed who was "liable to impeachment." The South Carolina Constitution provides some basis for the "late" interpretation of impeachment jurisdiction, as opposed to the "Whitewater" interpretation, in its statements that officers were "liable to impeachment" as opposed to being "liable to removal," and that impeachable offenses had to be committed in office. 1"1 Pennsylvania's constitution was the next to be ratified in 1790. 'While the old Pennsylvania Constitution had specifically authorized late impeachment if the officer had not left office by the natural expiration of his term, the new constitution was silent on the subject. Instead, it, too, tracked the language of the federal Constitution. 1:1:> In blurring the Issue of late 43:t s.c. CONST. of 1790, art. V, ~ 3. 434. Th(' "V.'hitewat('r" and other illl('rpretations of impeachment are d"cllssl"d in Part~ IV.B.2 and V.E, mpra. The dismissal-centered language was used in New.lerwy', re\"()lutionary constitution. See SIlpra t('xt accompanying note 75. Of course, the 1.lIlgllag(· in the federal Constitution obscures this point. See supra Part IV. 435. Sff PA. CONST. of 1790, art. IV, ~ 3 ("The Goyernor, and all other civil ofli( el', IInder thi~ commonwealth, shall be liable to impeachment fi)r anv mi~delll('anor III ofIke: But judgment, in such cases, shall not extend furtht'r than to n'nH)v;,1 frolll ofli( (., and disqualification to hold any oflice of honour, trust, or profit, und('\" tlll~

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impeachment, the Pennsylvania framers might have intended to expand late impeachment to include those who had left oflice naturally or to rule out late impeachment altogether. As in South Carolina, though, the failure to mention removal prominently and the use of explicit language regarding the timing of the offense provide some basis for adopting the "late" interpretation of impeachment jurisdiction, Kentucky joined the Union in 1791 and copied the SOllth Carolina/Pennsylvania language:~ The next year, the framers of the new Delaware Constitution adhered even more closely to the language in the federal Constitution,H' Recall that Del'aware's old constitution had specified an eighteen-month statute of limitations for impeachment cases and had required that the commonwealth: The party, whether com;w:d or acqui(l<:d, shall n<:\l,rthd~ \)(' habit' to indictment, trial, judgment, and punishment, according 10 law.-). II appt'an [hal [h<: 1790 revision initially may not have included the first S<:ntt'IIC<: spt'nf\1l1g who wuld \)(' impeached. See MINUTES OF THE GRAND CO~I~IITrEE OF 11IE \\"1101.£ Cosnxl1os Of nit COMMOll.'WEALTH OF PENNSYLVAl',1A 59 (Philaddphia. Zachariah I'oubon 1790) (.hOl\1ng adoption of Article IV, § 3 without its first s<:nt<:nc<:); ul. at 98 (rt'pnntlllg t'll II n' constitution and showing Article IV. § 3 without its first s<:ntl'nc<:). The scope of the new Pennsylvania imp<:achment clalls<:s \\~LS ill!<:ndt'd 10 Ix, tht' "1111<: as that of the federal prO\isions--asid<: from a slight difI<:rt'nCt' in tht' ddilllllOIl of impeachable offenses--as demonstrated in a statem<:nt by leading Framer ,lIId Suprt'lIIe Court Justice James Wilson: "The president, \;ce prt'"Sident, and all chil officen of the United States; the governour and all other chil offiCt,rs under thi- COIIIIIIOII\\'t';llIh, .Irt' liable to impeachment; the officers of the United St;nes. for tre,LSon, bribel"\. or other high crimes and misdemeanors; the officers of thb ('ollllllon\\'t';llIh. for .111\ misdemeanor in office.- 1 JAMES \\'1I.50N. supm note 43. at 426. 436. See KY. CONS!". of 1791, art. V, § 2 ("The Gm't'rnor and all chil offict'n .h;lll Ix, liable to impeachment for any misdemeanor in offict'; but judgtnt'nt in such c;~ .hall not extend further than to remo\'al from office, and disqualifir.nion to hold '111\' offict' of honor, trust, or profit, under this Comlllonweallh; but tht' !>;lrt\' con\1C!t'd sh.11I nevertheless be liable and subject to indicull<:nt, trial. and punishlllt'II!, according 10 law.-). Tennessee followed suit in 1796. &~ TENN. COS~T. of 1796. art. IV, §.\ (-nit' governor, and all civil officers under this St.'lte, shall bt' liablt' 10 illl!>t';lChlllt'1I! for '111\ misdemeanor in office; but judgment, in such cast'"S, shall not l'xtt'nd furtht'f [h'lII In removal from office, and disqualification to hold any offin' of hOIlOf, tn!!>[, or profit under this State. The party shall, 1lC\'erthclt'"SS, in all GLSeS bt' liablt' [0 IIIdinlllt'II[, [nal, judgment, and punishment, according to law.-). 437. See DEL CONS!". of 1792, an, V. § 2 (-Tht' Gm't'OIor, alld all otht'f n'll offin'n under this state, shall be liable to impeachment for trt';LSOII, bribt'l"\', Of all\' high cnlllt' or misdemeanor in office. Judgment in such cast'"S shall 1I0t t'xtt'nd furtht'f th,lII to removal from office, and disqualification to hold any offict' of honor, In!!>t Of profit under this state; but the party convicted shall ne\'enhdcss bt' subjt'C! to indicullt'II!, tn.ll. judgment and punishment according to law.-): DRAnan Of A CO~SI1It-1I0~ Of GoVERNMENT (Wilmington, Peter Brynberg & Salllul'l Andn'".,. 1792) (ft'cordlllg identical proposed language circulated to citizcnl')' b~' ordt'r of tht' con\'t'lluon 011 December 31, 1791); see also PROCEEDINGS OFn~E HOl'SE OF ASSBIII!.\' OF 1lIt. Df.I_\W\R~ STATE 1781-1792 AND OF THE CONS!"m'TIONAl. CoSV£.,\,,110S OF 1792, at 800 «(laudla L Bushman et al. eds., 1988) (recording cOIl\'t'ntion's acct'pt;lIIct' of nt'W III1Pt';lcllllIt'1II language found in draft cited above); id. at 883 (ratif)ing S;UIlt'); rd. at :{6-:{7 (dt':S('riblllg resemblance between new state constitution and fed<:ral Constitution).

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clock not begin for governors until they left office."1< Thus. Delaware had required late impeachment for governors and had permitted late impeachment for other officials who left office less than eighteen months after committing their offenses. With the new constitutional language, Delaware no longer required or explicitly authorized late impeachment. On the other halHl. it did not forbid them either, and it eliminated the eighteenmonth time limit. In some sense, then, Delaware fx/mntied the impeachment power to include "regular" impeachment; there is no reason to conclude that this expansion was achieved only as an unstated trade for restricting the power oflate impeachment. Vermont rewrote its Constitution in 1793 upon joining the Union. It kept the same language on impeachment, however. and that language remains in the Vermont Constitution today. "., Thus, Vermont is currently one of only two states that explicitly and specifically authorize late impeachmen t. 110 The other state. New Jersey, added a limited late impeachment power when it wrote its second constitution 111 1844, almost as an afterthought. III Finally, Virginia, the first state to address late impeachmellt explicitly in its constitution, removed that specification in l8~O. In doing so, it clouded the issue of late impeachment in the same manner as did Pennsylvania and Delaware. Recall that the Virginia Constitution of 1776 had required that governors could only be impeached after leaving office, but placed no time limits on impeachment of other officers. 112 Requiring late

438. Sfr slI/Jra text accompanying note i6 and following dbnl~,ioll. 439. See Vr. CO:-;5T. ch. 2. § 58. The Verlllont Constitutioll h." been ,ub,t.IIIII.llh amended since I i93. when this prO\;sion was found at § 2,1. 440. /d. ("Every officer of State. whether judicial or exe( utivt'. ,h.11I be It.lble to he impeached by the House of Representatives. either when in ollice 01 a/tt'f 1{·'lgn.ltloll 01 remoyal for mal-administration."). 441. See;-";J. CO:-;ST. of 1844. art. V, § II ("The gowl'llor .lIId all othel olli( ('" IIIHit'1 thi. State ~hall be liable to impeachment for IIII~dellleanOl in oflirt·. dllllllg thell continuance in office, and for two )'ran tllPrmfirr.") (elllpha~i' added); PROCH l>1~(,:-' O~ TilE ;-";E\\, JERSEY STA rE CO:-;STITl·'IIO:-;AI. CO\;VE\; 110:-; OF I!H4, .11 600 (New Je!'('\ \-"riters' Pn~ject ed., 1942) (chronicling last-lIIinute addition of lalt' IIl1pe.l( hlll('lIt p"'O\;sion); 'ee also NJ. C:O:-;ST. art. VII, § :{. rI. 1 ("The (;0\("1'1101' and .111 oth('1 St.II!' of1icers. while in office and for two years thereafter, ~hall be liahle to 11II»(·.l('hlllellt tOI lIIisdemeanor committed during their respective continuance ill o!lice."). Senator Eaton. an opponent of late impeachment, argued at the Iklknap tn.11 the addition of an explicit late impeachlllent provi,ion to the New JerM'Y (;Oll'tltlllloll presupposed that the old one-which paralleled the ,iien('(' ill the ft-dl'l.t1 Constitution-barred late impeachment. BrI.K:-;,\I'TRtAL. IIt/na note I H, .It II (i, 442. See Hl/"" text accompanying note 74.

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impeachment of governors was a limit, and that limit was HS removed in 1830. Thus, the changes made in 1830 do not answer the question of whether or not late impeachment exists in Virginia. 2. State Cases State impeachment precedents prior to 1787 can enhance an understanding of federal impeachment. These precedents are sympathetic to late impeachment on balance, but the balance is a close one. Moreover, they are decisions by courts, and thus represent a third participant in an inter-branch struggle to define the bounds of impeachment. As with federal cases, though, state cases do not provide a very large sample. If. They do not readily provide firm conclusions about the nature of late impeachment. a. EarZ)' Cases The New Hampshire case of Judge 'Voodbury Langdon presents an early state precedent against late impeachment. Langdon resigned from office in 1790 after he had been impeached but before his trial commenced."~ The assembly voted not to accept his resignation but had no power to compel him to serve.-H6 vV'hen Langdon refused to show up for the trial, the impeachment managers entered a 1Iol1e prost'qui and the case was dismissed. H; On the other extreme is Kentucky's impeachment of Thomas HS Jones, a county surveyor, in 1803. Jones resigned during his trial, but the senate decided that this did not remove its H9 jurisdiction over the case. The trial continued, and Jones was 443. See VA. CONST. of 1830, an. 111, § 13 ("The gon-mor, dll' judgl"> ollh<' coun of appeals and superior couns, and all mhers offending alf



rm. Co:-;slIn'lIo:-, OF \'IRl,l:-;l\

557 (1974) ("Impeachments hal'e been a soml'lime Ihing in Ihe SI;lIl"'. !'in<' gUl<'mor5 hal'e been impeached, . . . and impeachmelll of olher l'Xl'ClUi,,' ofikef> ha~ I><"<'n f.uril' rare. As wim me federal impeachmelll c1altse. slale c1ausl-s han' had Ihelr gr<,;unl l~ in me impeachment ofjudges:). 445. HOFFER & HUu., supra nOle I, al 126":~9 (desC'nbing Langdon ca~d, 446. [d. at 128. 447. [d. 448. See id. at 172 (describingJones C'ast"). 449. !d.

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convicted and disqualified from future oflice.,··n Similarly, SOllth Carolina impeached Daniel Doyley, a state treasury officer. ">1 He too was tried despite voluntarily leaving office, was convicted, and was disqualified from future oflice. m

b. Hill One distinction between state late impeachments and federal ones is that many state cases have resulted in judicial review. '"0< Unlike legislative precedents, judicial precedenL') carry both a clear statement of intent and understanding (that being the purpose of judicial opinions) and the full weight of stare decisis. A key case in the realm of state judicial treatment of late impeachment was the Supreme Court of Nebraska's decision in State v. HilL ,j, Hill rejected late impeachment, against a background of other state cases that had affirmed it. ,.... The case concerned the attempted late impeachmenL') in April 1H9~ of former state oflicials Thomas Benton and John Hill.'·'" Both defendants entered pleas in the state supreme court challenging their amenability to impeachment.1">7 The state constitution provided that "all civil oflicers of this state shall be liable to impeachment for any misdemeanor in oflice.,,'··H The cOllrt viewed this provision and procedural requirements in the state constitution that related to oflicers as evidence that private citizens, whether ex-officers or not, were not amenable to impeachment: [S]ection 5, already quoted, designates the persons who llIay be impeached as "all civil officers of this stale." This language

450. !d. 451. !d. at 256-57 (describing Doyley ca~e). 452. {d. 453. See .m/1Ta note 163 and accompanying texl. 454. 55 N.W. 794 (Neb. 1893). [n a case decided tht' sallie day, the cOlllt dl'II1''''I'
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is unambiguous. It means existing officers; persons in office at the time they are impeached. Ex-officials are not civil officers within the meaning of the constitution. Jurisdiction to impeach attaches at the time the offense is committed. and continues during the time the offender remains in office. but 459 no longer. The court also considered a state statute that allowed late uial of impeachment but construed it expressio UT/ius to distinguish between late impeachment (forbidden) and late trial {permitted).460 In the process of stating its decision, the court also surveyed Justice Story's commentaries against late impeachment and labeled them a "generally accepted . . . correct exposition of the law. "461 The court rejected the British cases of Hastings and Melville as irrelevant given the broader scope of English impeachment. 462 It also considered a trio of slate cases (from Nebraska, New York, and Wisconsin) in which a foml of late impeachment was approved-officials who served multiple terms continuously were successfully impeached for offenses committed in prior terms. 463 The Hill court distinguished these cases; it considered the current status of the officials more important than the timing of the trial vis-a-vis the offense!'" Finally, it rejected the Belknap precedent because of the weakness of the Senate's majority and also because, unlike Belknap, Benton and Hill were out of office from the natural 465 expiration of their terms. 459. Id. at 796. 460. See supra text accompanying notes 250-51. 461. Hill, 55 N.W. at 796; su also il/fra Part VII.A (quoting Jmtict· 510r),·5 commentary on late impeachment). 462. Hill, 55 N.W. at 797; su also supra text accompan)ing nOll"; 5-1·58. 463. Hill, 55 N.W. at 797. The cases described in Hill.. conceming Go\"e-mor Buder of Nebraska. Judge Barnard of New York. and Judge Hubble of\\rlSC(lllsin, are describrd in more detail in Newmal/ v. Strobel, 259 N.Y.S. -102. -106-07 (N.Y. App. Di\". 1932). 464. Hill, 55 N.W. at 797. The court did not make clear whelher Ihe defendants· terms must be continuous for such an impeachment to occur, Ihough it did men lion continuousness in a way that suggests it dlOugln so. Su id. The Opposile ,iew, hOl,·<."\e-r, would be more logically consistent-it would focus impe.. chment on remOl"a1 for offiCl..1 misconduct, period. This issue is discllssed in more detail in Part V.E, supra. An even starker case-in which senice \\"as continuous bill Ihe office changedoccllrred after Hill See 2 Archbald Trial.. supra note 269, al 1.J2-1 (manager', alb'1lmelll) (discussing 1901 case ofJudge Furches of North Carolina). 465. Hill, 55 N.W. at 797; su also supra Part Vl.A.5 (disCIIssing Belknap G=). Rer.11I that the first state constitution of Pennsyh"ania and all of Ihl" comtiuuion" of Ve-nllolll ha\·e allowed late impeachment against officials. bill onh· if Iheir It·nm did nol expirenaturally. See supra text accompanying notes 78 and 8:~.

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c. Ferguson Another case, with simpler facts, occurred in Texas in 1924. I... Governor James E. Ferguson had been impeached in 1917 and disqualified from future state office. Ferguson was attempting to get his name on the ballot in 1924, alleging that he resigned the day before he had been disqualified, making the Senate's act void. 167 As the court described the facts, Ferguson had participated in his trial and had lost the vote of conviction, but "before the Senate, in due course of orderly procedure, could pronounce its judgment, [Ferguson] filed his resignation with . I erguson F 's t h e secretary 0 f state. ,,"ill Th e C ourt reJectec argument that he could deprive the Senate of the jurisdiction to sentence him: [The Senate's] power to conclude the proceedings and enter judgment was not dependent upon the will or act of the Governor. Othenvise, a solemn trial before a high tribunal would be turned into a farce . . . . [T] he resignation of Governor Ferguson in no manner impaired the power or jurisdiction of the Senate to render judgment ""

To be sure, Ferguson's case was an extreme one. Nevertheless, the Texas Supreme Court recognized that impeachment is not just about removal. The court made clear that if removal were the only possible penalty-if the jurisdiction of the Senate somehow depended on its ability to remove the del'endantthen Ferguson's action would have been effective."" Because ill Texas, as in the federal system, impeachment convicL<; can be disqualified, however, this view of jurisdiction must f~li\.171 This was true even though the Texas Constitution, tracking its federal counterpart, referred only to impeachment of the "Governor" (as opposed to the ex-Governor) and made clear that the 466. Sel' Ferguson v. Maddox. 263 S.W. 888 (Tex. 1924). 467. ld. at 888-89. After losin~ this case Fer~uson simply had his Wlft-... M.... Ferguson. run for ~o\'ernor. She won easily and became the nation', st'(' id. 470. Id. 471. Id.


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principal practical purpose of impeachment was to remove silting "1 0 ffilcers. 47"ClVl d. Smith

The most recent state opmlOn on late impeachment is the 1981 Florida decision in Smith v. Bml1tley:'~ In that case, the Florida Supreme Court decided four to three that late m impeachment was not allowed. Circuit Judge Samuel Smith voluntarily suspended himself in 1977, after sixteen years on the bench, in the midst of allegations that he was involved in a scheme to traffic over 1,500 pounds of marijuana. 4' ; On JanualJT 13, 1978, Smith altempted to resign from the bench, but Governor Reubin Askew refused to accept the resignation, in part because he did not want to prejudice any case against Smith:,6 The most ob"ious potential prejudice was the possibility that Smith might not be impeachable if he had already resigned. As expected, onJanualJ' 31, a special committee was appointed in the state House to consider impeachment, and on April 12 Smith was impeached. m Smith tried to stop the proceedings with a lawsuit alleging that as an ex-officer he was no longer subject to impeachment.'" His lawyers argued that he was no longer an "officer," cited numerous cases in which officials who resigned were not pursued, and argued that federal precedent was either neutl(ll 4 or against late impeachment. <9 The House managers and several 472. [d. at 890 (citing constimtional provisions. including Tl-.X. o.):-'SI. art. X\". ~ 2 (stating that "Go\'emor~ and other named officers can bt' impt';lcht'd»; Ill. ~ i (;lllo"1ng legislamre to provide for impeachment procedures in cast" ill\ohing -cinl o/liet'n." II,H named in § 2); id. § 5 (prO\iding for suspension of impeachmt'l\I d.·ft·ll(bnl'> frulll offiet' during pendency of case). 473. 400 So. 2d 443 (Fla. 1981). 474. [d. 475. jOUR.'1AL OF THE SE:-IATE, STAIT OF FLORIDA 196 (Court of Impt·.ldllut'1\I I!Jill ) [hereinafter SENATE jOUR.'1ALj (setting forth Artick 11 of Iht' articl.-" of impt';ldllllt'l\I; "Conspiracy to Unla\\fully Obtain and Dislribule in [XCl'SS of Appruximald\' 1:,00 Pounds ofMarijuana~). 476. See Smith, 400 So. 2d at 445. 477. [d. 478. [d. at 445-46. 479. SENATE jOUR.'1AL, supra nOll' 4i5. al 22-2:t :'\ont' of Ih.· (';tl>e. ntt'd .tl> Ix-lIIg dropped upon resignation appear to have invoh'ed a delt'nnillalion Ihal I! \\ould h;"t' been unconstitutional to proceed. On the federal precedeuLS. Smilh' s lal,"\ er argut'd Ih;1! Blount's case stood against late impeach melli, sl"t'supra Part \"LA.I. ;lIId Ihal Iklkllap', was not applicable because the majority in fa"or of lale impeaehabilil' \,~tl> ,hort of 1',,)thirds, see supra Pan VI.A.5.

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senators disagreed and made their own historical and structural IW arguments. The Senate voted twenty-nine to six to go fonvard with the trial after the Chief Justice, presiding over the Senate for the occasion, advised the Senate that it did have jurisdiction over the case even if Smith had resigned. 1"1 The trial court then IR2 rejected Smith's lawsuit. The impeachment proceeded, and Smith was unanimously convicted, removed from office (to the extent that the effectiveness of his resignation was in doubt), IR 1 and disqualified from future office. . Reviewing the case, the supreme court disagreed with iL<; chief justice and with the lower courLI"1 The court concluded that the resignation could be effective despite the governor's refusal to accept it,~!l:. and that once an officer is out of office, the HOllse has no jurisdiction to impeach him.ll<(, (Interestingly, because the court was so badly split, Smith's conviction nevertheless was affirmed. ~R7) The court took a simple view of the question, similar to the IRR one sketched out at the outset of this article. First, the cOllrt looked at the state constitutional provisions that governors, judges, and other officers are liable to impeachment for misdemeanor in office, are to be suspended from performing their duties during the impeachment proceedings, and arc to be

480. SreSEl':ATEj0l"RNAL, sll/Ira note 475. at 26. 31·32 (Court or Impeadllllt'nl 1!/78) (recording House managers citing cases of Blount. fee m/lm ParI VI.A.I. Belknap. "'/' SillIra Part VI.A.5. and Ferguson. see mjra Part VI.2.c. and arguing that disqualilkallOn. "'/' mjra Part VIlLA. represented adequate basis to proceed against ex·oflicers); 1(1. at :1O (recording inquiry by Senator Dunn that barring late impeachability would allow sub)," I to resign to avoid disqualification. see mpm Part V.B. and thereby "unilater,llIy Ihwar I Ihe will of the p("ople"). 481. SEl':ATEjOl'RNAL, sullra not(" 475. at 49 (Court of Impeachment 1978) (VOle). id. al 41 (chiefjustice's opinion). The chief justice relied heavily on the h\{'I thai Snlllh would receive a pension if not impeached and convicted. which he round 10 be .111 adequate ba.~is for proceeding. See injra text accompanying note 506 ('Imilar .lIgumenl in case of President Nixon); Part VIII.B (discu~ing practical dfert 01 pension' on 1.lle impeachment) . 482. SmIth. 400 So. 2d at 446. 483. SEl':ATE jOl'R:-;AL, mpra note 475. at 185-87 (Court of ImpearIllnenl 1978) (mentioning and explaining the VOles). 484. Smith. 400 So. 2d at 451. 485. [d. at 449. 486. !d. at 487. 487. While the court split four to Ihree on late impeachabihty, onejustl(e wanled 10 make prospective the ruling that re~ignations are effective regardks., 01 the goVt"lnOl', actions, and so he aflirmed the Senale's verdict along with the three dis.,t·nlel'. Id. •11 F,:{ (England,j., concurring in part and dissenting in p
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removed from office if convicted.~'~ The coun concluded that officers are officers; ex-officers, who could not be suspended or removed from office, are not.~90 The coun thus was making the linguistic argument that "officer" meant "sitting officer" and the functional argument that "the primary and dominant purpose of impeachment in Florida is removal of an officeholder from office."491 Once an officer has resigned, this purpose is fulfilled, the court said, and the mere possibility of disqualification from future office does not change the fact that the main purpose of m the process has been achieved. The court considered Blount, Belknap, and Ferguson, but argued that in each case the resignation did not occur until impeachment proceedings had b egun. Three justices dissented, asserting two functional arguments made in this article-that disqualification is significant and that the jurisdiction of an impeachment court should not depend on the whim on the defendant or the timing of his offense: 49~

The majority holding will allow officers who secretly commit serious breaches of the public trust... to escape impeachment and disqualification if the), resign or if their terms of office expire before their misdeeds arc discovcrcd and impeachment proceedings are begun. This surely was not intended by the framers of our constitution when the)' gave the Senate the authority to disqualify . . . . ~9~

Perhaps fittingly, this closest of constitutional questions received the closest of verdicts.

489. Smith, 400 So. 2d at 449 (examining fL.\. CoNST. an. III, § Ii). In dIe prt'\ious version of the state constitution, disqualification was a mandatory pan of Ihe SClllence ;IS well. See id. at 450 (discussing FLo\.. CoNST. of 1885, an. III, § 29). 490. Id. at 449-50. 491. Id. 492. Id. at 450. 493. Id. The court was right that Blount and Ferguson lefl office onl\' after Iher had been impeached. See supra text accompan)ing nOll'S 281-82 (cOl'ering Ihe B10ulII chronology) and 466-67 (covering the Ferguson chronolob'}'). BUI Bdknal>-who resigned before any official action was taken againsl him by Ihe HOIJ.MO bill afler his offenses were being considered in commillee, stY BELK."AI' TRIAl1 mpm nOle 18, al 130 (opinion of Senator Bayard)-presents serious line-dr.ming problems Ihal Ihe }Olorid
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Unsurprisingly, given the high stakes and close questions inherent in late impeachment, the issue has attracted il<; share or commentary from the academy. As with the rest of the evidence marshaled in this article, commentators are divided but lean toward the acceptance oElate impeachment.

A. Rawle (Inri Story In his famous treatise on constitutional law, William Rawle gave a relatively terse treatment of the issue and concluded that late impeachment was constitutionally acceptable. As he put it, "[Ih is obvious, that the only persons liable to impeachment, arc those who are or have been in public office.""'; An even more distinguished commentator, Justice Joseph Story, weighed in on the question a few years later in his Commentaries. 1% Story disagreed with Rawle, whom he rc/"erred to as "[aJ learned commentator."I"7 Story focused on the prominent mention of removal in Article II, Section 4, which he considered to define who and what was impeachable:"'~ If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachlllent. .. . [T]he language of the constitution may create sOllle doubt, whether it can be pronounced without being coupled with a removal from office. I'"

Story denigrated disqualification as a remedy, noting that it "would be scarcely felt, as a punishment, by the profligate and the base,":"" and positing that "it might be argued with SOIl1C force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most 495. Rl,\I'!.E, supra note 35, at 213 (empha;is added). 496. STORY, m/mlnote 42. 49i. 2 it!. at 2iO. 498. Cf. Illpra note 90 (disCllssing Sto'1-"s con("(''s',ion that Article II. ~ I wOllld lit more logically in Article I). 499. 2 STORY, supra note 42, at 2il. Story elsewhere mentioned that "[tlherl' seellls to be peculiar propriety, in a republican government at least, in confining the impeaching power to persons holding office." 2 ul. at 256. In context, howevl'l, Story \v," merely limiting impeachment to official as opposed to priv.lte a,tion and not di'ClI!>.'"lg the timing of the proceedings. See 2 it!. 500. 2 it!. at 251.

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important object, for which the remedy was given, was no longer . bl e. ,,501 necessary, or attaIna Although Story's arguments against late impeachment could not convince a majority of the Senate in the Belknap case, he did influence many among the minority.~! The main reason that Story's arguments have not received more definitive support is that, with all due respect to Story, his arguments about late impeachment did not address the weakness of the textual case against late impeachment and did not engage, let alone answer, the structural concerns that militate in f~lVor of late impeachability. Story himself seems to have recognized the limits in his presentation; he issued this strong caveat at the end of his discussion oflate impeachment: It is not intended to express any op"llon in these commentaries, as to which is the true exposition of the constitution on the points above stated [including late impeachment]. They are brought before the learned reader, as matters still suiJ judice, the final decision of which Illa), be reasonably left to the high tribunal, constituting the coun of 50 impeachment, when the occasion shall arise. ' Opponents of his position have used this caveat, quite rightl)" to rebut those who have cited Story as an authority against late impeachment;504 Story himself realized that this was not a simple question and that the Senate would have the last word.

B. Recent Commelltm)' More recently, in the wake of\,Vatergate and [,affaire Lewinsky, the argument for late impeachment has reemerged. The political atmosphere in Vhtergate was somewhat charged-a President unpopular among law professors, whose conduct seemed clearly to be impeachable, who resigned rather than face impeachment, and who was pardoned by his successor. Other than the dim possibility of state criminal proceedings, the

50l. 2 id. at 27l. 502. See supra notes 364-65 and accompan)ing I...XI. 503. 2 STORY, supra note 42, al 273. The hesitalll nature of Slory'~ conclusion one unblushing advocate a reason 10 question whether Slory' had "Tillell Ihese comments at all. 43 CoKG. REc. 324 (1875) (stalemem of Rep. Butler> (-1111.' diclUIlI of Judge Story upon this question was, I am afraid, lik ... some olh ... r dirla in h~ mituninuus works, written by some law-school sluden I [.J"). 504. E.g., supra text accompanying nOll' 365.

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only possibility of punishing Nixon under the law was to impeach him even though he had left office. One article in the Duke Law Journal argued that Nixon could still be impeached:''''' even as it conceded that Congress appeared unlikely to do SO."'I"' Another article reached the same conclusion in quite strong J07 terms and chided Raoul Berger for leaving the late impeachment issue completely out of his book Impearhment: TIll' Constitutional Problems. j08 It was assumed by some of these same commentators that an impeachment conviction would allow Congress to strip Nixon of his pension,509 but it now seems that this would have violated the constitutional limitation on judgments to removal and disqualification. In retrospect, Congress could have taken steps to allow late impeachment to strip an ex-officer of his pension, but it was probably too late to apply such a law to Nixon.""" Most recently, Michael Gerhardt, perhaps the leading scholar on impeachment working today, has written that there is a "surprising consensus among commentators" that late 511 impeachment is acceptable. (In fact the consensus, while

505. Firmage & Mangrum, supra note 142. at IOH9-94. Firmage and M,\Ilgl UIII noled the Blount concession, see supra text accompanying notes 294-95, Ihe Belknap case. \/'/' supra Part \'1,A.5, and the English caveat, see wpra text accompanying note ,lOll. They then argued that late impeachment could be used to disqualify, to slrip emolumenls. "ul see infra Part VIlLA, and to set prec(·denl. They recogni/ed, how('v('r, Ihal n',ign.llioll would accomplish many of the goals of an impeachment and '0 mighl lIIake II worthwhile to end the proceedings, 506. Firmage & Mangrum, supra note 142. at 110 I. 507. See Bestor, supra note 133, at 277-81 ("[Mlany members of Congless. 10 '.1\' nothing of the general public, assume that the liability of an of1idal to impeachmelll somehow terminates the instant he leaves of1ice , . . . Such an assumption h,l' no substantial historical foundation and is not supported by a single author ilati\'(' ami unequivocal decision of recent times."). Bestor raised the Hastings precedellt, lee lIl/ml text accompanying notes 54-57, the Virginia and Delaware Constitutions, Iff lIl/ml lexi accompanying notes 74 & 76, the absence of any constitutional provision hal ring 1.11(' impeachment, the "whilst in office" discussion at the constitutional convention. I/'f lIl/ml Part I1LC.l.b. the Adams quotation, see supra text accompanying IlOte, :HO-I:~, Ihe Belknap case, see supra Part Vi.A.5, and the functional argullll'nt that late impeadllm'lIl would be less destabilizing than seeking to n'm()\'e a sitting Pre~idellt, 'fI' III/Ill lexi accompanying note 543. 50S. See Bestor, supra note 133, at 2S0-81 (arguing that late imp(',Khment i~ ,I mOl(' important problem than others considered at length by Bergn). 509. Firmage & Mangrum, supra note 142, at 1092. 510. See infra Part ViILB (discussing ability to use impeachment 10 strip pensions). 51!. GERHARDT, supra note 12, at 79 & n.22 (citing ,l' examples an ('arlier artid(' hI' himself; Rotnnda, supra note 190; Firmage and Mangrum, lupra note 142; and Heslol. IU/Jra note 133). Others have written in favor of late impeachability. /\:/(.. Jonath.1II Turley, 171e ExeClllive HlIlClioTl Theo,)', Ihe HamiltoTl Affair, lITld ollwr (,'",,-,lllllt/(JTlIlI Mylhologies, 77 N.C. L. REv. 1791, IS27 (1999) ("[TJhe Belknap case indicates th.1I

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surprising, is not unanimous.~'I~) Gerhardt agrees that the precedents of failure to use late impeachment reflect practical considerations rather than constitutional limits. m Gerhardt cites the Warren Hastings precedent and pre-l 787 st.-He constitutional language addressing late impeachmenl.~1i He continues with a structural argument about disqualification, evidence of original understanding, citation to John Quincy Adams, and a dismissal ofJustice Story's concerns.;I; When President Clinton outraged many with his literally lastminute pardons, the issue emerged again. I can personally relate that I wrote an updated op-ed piece on the subject, which was rejected by all outlets to which I submitted it, including one conservative publication that said the notion of impeaching a President after he had left office was too fantastical even for -16 them.' A few days later, Senator Arlen Specter appeared on a Sunday morning talk show and expressed his f~l\'orable opinion on late impeachability, which suddenly seemed much less fantastical, if still quite unlikely in Clinton's particular case.~I; Specter's comments in favor spurred commental)' of its own on both sides of the issue, thus further belying the consensus that Gerhardt had found not long before.;I~

resignation from office does not prevent trial on anicles of illlp ...achllll:IlI.-); C.S. p()t~, Impeachment as a Remedy, 12 ST. Lams L. REv. 15,23 (1927). 512. See supra note 16 (listing some of thos... who havt' \"rittl'1l ag'lill.>t lill ... impeachability). 513. GERHARDT, supra note 12, at 79-80 (-No doubt, III ... n· ar ... IIUIll ... rOII.> n-il.>OlI.> not to move for impeachment against an ollicial aft ... r r ...sil,'llillioll, but 1I01ll' of th ........ 'Ifl' constitutionally mandated.-); see infra Pan Vll. 514. GERHARDT, supra note 12, at 79. On Hastillgs, St'l' wpm t... xt aCCOlllpall)ll1g notes 54-57. State constitutional language is discuss...d ill Pan 11l.8.2, wpm. 515. GERHARDT, supra note 12, at SQ.SI. 011 disqualiliGllioll, Sl'''' Pan \'.8, wpm. Original understanding is discussed in Pan Ill.C.l, supm, alld lilt' -\,'hibt III ollie ... language that Gerhardt focuses on is discussed ill Pan l1l.C.I.b, wpm. Adalll.> I.> discussed in text accompan}ing notes 310-14, supra, and Ston' in Pan VIl.A. ",pm. 516. The piece eventually appeared 011 the Jurist web sit .... St't' Kilh Ijt'RlSI), wpm note S. A similar piece had run twO years befort"-in Canada, Su Kilh (:-:,,1'1 l'oSI), supra note S. 517. See infra text accompanying not ... 532. 51S. See, e.g., Souss, supra note 16 (opposing lat ... illlpl'aehability); Mink R. l.r\1 11 , Arlen Specter, the Constitution, & UFOs, NATIONAL REVIEW O~IJ:-;f. (Fl'b. 12, 2001), lit http://www.nationalre\\in02120 1a.shulli (opposing latl' impeachability); Kalt (JURIST), SIlpra note S (favoring latl' illl(>l'achabilit\"); Victor Williams, Pardongate: Another ImjNnchmnlt Aft" th~ /rWt:StlgtttIOIU G",cilllirr, FI:-;lll_"\\"~ WRIT (Feb. 27, 2001), at!7 _ "illiams.html (favoring late impeacltability).

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The foregoing has all been directed at the question or whether late impeachment is allowed. It is time to confront a more difficult question for proponents of late impeachment: What is the point? Even though they do not prove that late impeachment is legally impossible, the nearly unbroken series of cases in which impeachment proceedings were dropped when the target resigned show that pursuing a late impeachment is generally regarded as pointless in actual cases. Whatever the abstract purposes of impeachment, it is evident that removing the target has been the primary practical purpose and that once removal has been accomplished-by whatever means-there was often little point in continuing. Then again, the sample size is (;\irly small, it includes the late impeachments of Blount and Belknap, and it is easy to imagine a future case in which late impeachment is worthwhile. A. Disqualification

Disqualification is currently the only practical consequence to the target of a late impeachment. Despite the many arguments made by proponent<; of late impeachment that disqualification is a significant punishment:"" the simple fact of the matter is that in most cases it is not. Most people who resign to avoid impeachment will carry enough disgrace that they cannot count on being re-appointed and re-confirmed anyway"·2f1 Moreover. some of these people have been old enough that they were not likely to get new federal jobs even if they were proven 21 innocent"· Indeed, in most impeachment cases, the Senate has not even bothered to disqualify the convict.;22 Still, one can imagine a case in which disqualification is worthwhile. An official may have committed an offense so heinous that it is appropriate to declare to the nation that he is constitutionally unworthy of "honor, trust, or profit."

519. See SlI/1m rart V.B. 520. Cf wpm note 269 and accompanying text. 521. See. e.g.• supm text accompanying notes 408-10. 522. Of the fourteen men cOI1\~cted in impeachment C'L~es. only two. Judge~ We'\ Humphreys and Robert Archbald. have been disqualified. BI'SflNH.L. wpm note Hi, at 6.

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One can also imagine a case in which the prospcct of thc convicted party staging a comeback is likely cnough-and undesirable enough-that disqualification is worth pursuing. While the undesirability of such a comeback is a subjcctivc matter that would depend on the specifics of the case. therc is little doubt of their likelihood. Senator Blount rcmaincd popular at home and could ha\'e st.1ged a comeback if hc had not died prematurely.:':!" President Andrew Johnson was eJcctcd to the Senate after he left office.··~~ Belknap had a successful Washington law practice after his impeachment."'" Onc can easily imagine a re!atively young ex-President such as Bill Clinton being interested in a judicial or diplomatic post. Thcre is, of course, a potential for abuse in such a situation, similar to Hypothetical 1 at the beginning of this article""'disqualification might be used as a weapon to defeat the political will of a convict's supporters. This is a problcm inherent in impeachment itself, however, and not just latc impeachment in particular, A further advantage of late impeachmclll IS that thc punishment is much more flexible. Especially \"hen highranking executive officials are u'ied, removal from oflicc is so weighty and disruptive a penalty that it might precludc adjudication of the impeachment case "on thc rccord."'·"Disqualification is a severe penalty, but it is not mandatory; it is just the maximum.:'2S A late impeachmelll could rcsult in a suspension of eligibility for certain oflices, or for a ccrtain timc, or it might result in no punishment at all.":..'" To be sure, if Congress were interested in exprcssing its disapproval of an ex-oflicer withom actually levcling

523. See id. at 37. 524. See BUSHNEli.. supra note 16. at 160 (describing Johll>on\ po>l·p""'I(il'nll.11 career); Lawrence Kestenbaum. johllsoll, ,4I1dm,· (/808·J8i~/. III '11It 1'00111L\I GRO\VEYARD, at http://www.politicalgra\,eyard.coJll biu, juhll>olll.hlJllI (iiL'1 lIuKilfinl May 13,2001). 525. See BUSHNELL, supra note 16. al 189. 526. See supra text accompan~ing IIOle I: 5a auo ,"pm nol,' :WG \,iI'>CII'Mllg argument of Senator Stone). 527. See illfra text accompan)ing note 543. 528. While precedent establishes othen,ise. sOJlle bdie\'C Ih.1I diMllI.lhfkilllOIl U mandatory. See supra note 165. 529. See BELK."IAP TRIAL, supra note 18, at 48 (argllJlll'lII of Iloml' JIl.III.lgl'r- III Iiltl' impeachment trial).

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punishment, it could simply censure him:' But this provides a perfect example of the special essence of impeachment. Censure reflects the desire of a bare m~ority of Congress to make a relatively costless-and weightless-political statement. Impeachment, by contrast, requires a two-thirds m~ority in the Senate, which essentially requires bipartisan agreement. The very difficulty of obtaining an impeachment conviction casts it as a sober and momentous judgment rather than just a cynical political one. If the Senate determines that punishment is not worthwhile in the case at hand, this reflects iL'i nuanced judgment rather than the inevitable limits of the mechanism iL'ielf. Moreover, because of iL'i inherent weight, impeachment represenL'i a determination that similar conduct by others in the future is liable to be held impeachable and, if the target is in office, basis for mandatory removal. An impeachment of one person thus represents a precedent for others, promoting accountahility and providing deterrent. By comparison, censure is just congressional froth, as significant as a joint resolution 11 commemorating National Toothpick Week:· In any case, just as disqualification is available as a remedy even though it is rarely necessary, so too is late impeachment available regardless of how infrequently it proves worthwhile. B. Punishmrot Beyond Disqualification r\ practical reason to pursue late impeachment is that c\isqualifi(ation may not be the only punishment being the

oflicer in question. "Vhen Senator Arlen Specter suggested in February. 200 I that former President Clinton could still he 5:~O. The constitutionalit} of censure is " matter 01 some (l!sagH'enH'nt, 1I""t H'ccnt" during the Clinton impeachment . .\1'1' ~lichaelJ. Klarmall. CO/lllllltlIlJllflIFrl"h"lII fl1/d llit' 0111101/ !m/Jrtldlmnll f)dmle. H5 \"\' L REV. 6:H, 649-50 & 1I11.7:~74 (1999) (ntlllg dillcl ing opillion, Oil ITIl'un' durillg ClilltOIl impeachmellt). Thc argumcllt ill 1,1\'01 "I the IOll'tltutiollalit) of ccn~ure i~ morc per~ua~i\('. SrI'. r.K" Micha('1 J. Gnh,udt, Till' (.'01/l/lllIl101/f/bly of CnlHlrr. 33 L'. RICII. L RE\'. 3:~ (1999) (pn"entillg oa~ic ,lIglllll('lIt III 1,1\ or 01 (oll~titlltiollalit) of censllre) . .>:q. ,\., ,Ill ex,lInple, Presidellt Jacksoll's censllre oy the Sell"II' III IH:H W,,, e"p"llged Ihrec \('ar~ laler whell his party took cOlltrol 01 the Sell ate. I:~ (:ON( .. [HI\. :.0,' ( I H:n) (n""It'II<)I] expllllglllg Jackson's censure); Jack Chaney. TIll' CO/llllllllllllwitly 0/ Ct'l/I//171lg tilt' I'It'l/riml. 61 01110 5r. LJ. 979, 9HI·H2 (2000) (de.,crihillg epl/Illrf, 2,' I L\RV, J L & PI II. POI '1' ~H:~, ~90 (~O()O) (arglling thai n'nSIlIT viol"tt's prohibilion 011 ,1lI"indel)' !I'IIIi Cerhardt. IIl/JlYl note 5:~O. at 34 (arglling that Congre~s has the ,lIlthority to "pas' " 1I011·bincilng n',ollltioll expressing an opinio,,- 'liCit as censure).

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impeached, he did not even mention lhe possibililv of disqualifying Clinton from future office. Inslead, Specter indicated that if convicted, the ex-Presidelll would lose hi~ perquisites: President Clinton technically could still be impe;l("hed. And you say how can that happen, he's ou! of omce~ Became a president may be impeached for the emolullIcnts or oflin·. such as the substantial sums being speIH on thc library. stich a~ the bodyguards, such as his pension.~'~

Although Specter was correct (if lonely) in assening lhal Clinton could still be impeached, he was wrong lO slale lhal Clinton's punishment upon conviction could include slripping him of his "emoluments." Federal law currently prO\'ides lhal a President who is impeached does lose his pension and olher benefits, but only if he is impeached while in oflke.'" Therefore, impeaching Clinton would nOl affect hi~ "S4 emoluments.' All of this means that if a malfeasing Presidelll is inleresled in keeping his pension, he need only wail until the end of his lenn to commit his impeachable offenses. To avoid lhis son of misincentive,535 Congress should change the law to make dearprospectively-that an impeached and cOlwicled Presidelll (or other official) does not deserve to reap millions in federal benefits, regardless of when the offenses and impeachmeIll occur. This would add teeth to late impeachmenl and make il much more likely to be a worthwhile exercise of congressional resources. It would also prevent the awkward situalion of Congress using a pension as an improper bargaining chip lO induce resignation.5~ 532. Fox News SundG)' (Fox News Channel tdl'\isioll broad, .L\t. I'd). II. :!OO I , (transcript available at 2001 WI.. 7790809); su also text ."TOIIII),lIl\III~ 'IOtl' ",.)'1 (expressing similar belief by Watergate-era COllllllel1lator.;). 533. 3 U.s.C. § 102 (1994) ("As used in this section. the tl'nll '(Olllll'r I'r ..... dl'l1l· means a person , .. whose senice in such office shall han' tl'nllln.ltl·d oth"r th.u. b, removal pursuant to section 4 of article II of the Constitution o( th,' l'UIl,'d .... O( America[.]"). 534. Changing the law just to reach Clinton lIIi~ht h.1\ ,. UlII\lIlllt,·d .111 unconstitutional bill of attainder. If it would 1/01 haw b""n all att.und,'r. CUll~I<"'" ,ollid have passed a law stripping Clinton of his bl'nl'liL~ "ithOlIl b()(h,'nll~ to ~() till ()1I~h til<' cumbersome impeachment process. 535. See infra Part \'111.0. 536, Congress apparently continued the illlpt·achlllt·nt pru«,,'dlll~' .'~'lI"'t Jud~l' Warren Davis even after he had resigned frolll offict'. until ht' .l~n·,'d to ~l'l' up h" pension, See Turley, supra note 165. at 75 n.3:>9.

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One could argue that making the punishment on convICtion include such a severe financial penalty would violate the constitutional provIsIOn that 'Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Oflice of honor, Trust or Profit under the United States.,,·,17 If this is tnte, however, it makes the current presidential benefits law unconstitutional as well. More to the point, the law defining the benefits of ex-PresidenL<; operates independently of the impeachment process-it is a law approved by both houses and the President, and losing the pension would be based on the operation of the pension law, not on the 'Judgment" of the Senate in the impeachment case.'Il<

C. Pnwdml As in the rest of our common-law system, impeachment cases

not only affect the principals of the immediate controversy, but also establish the principles that future cases will follow. An impeachment case may present issues on which Congress wishes to establish precedents, and late impeachment may be the only way to do this successfully. Hypothetical 3 presents an example of a potential case in this vein,"'" If the issue is whether a certain type of conduct is impeachable, regardless of iL<; criminal nature, there is no substitute for impeachment to develop the precedent. Impeachment convictions and acquittals are rare, but they do sen'e to telegraph to other oflicials which conduct will, or will not, be tolerated. If Congress feels the need to resolve an issue by setting such a precedent, it might wish to proceed even if the target is no longer in office. D. Timing

Another reason that a late impeachment would be appropriate is timing. Ideally, holding all other things equal, an offense committed near the end of an officer's tenure would be l'.S. emsr. art. I. ~ 3, d. 7. One cOllld respond that the lucrative p'''t of ex-Pre~iclent i,. in .1 "'n"'. ,Ill "office" of "profit," fro III which rellloval and c1i"lualificatlon b acceptable. hut thi, 't',."" too cute. C/. !\.alt, supra note I:~, at 797 (using dl"lualilication language III c1", u""I"g congressional power to provide for ex-President~). 539. Sfe '1I1ml text .Kcompanving note :1. 537. 5:~H.

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treated the same as one occurring at the beginning. At the beginning of a presidential term, if the President or a cabinet member commits an impeachable offense, he can be impeached, removed, disqualified, and prosecuted. At the end of the term, given the cumbersome nature of the impeachment process, he can only be prosecuted. To be sure, this difference may just boil down to the value of disqualification, and as argued above disqualification often will not be enough to warrant proceeding with a late impeachment. 540 On the other hand, the f~lCt that disqualification usually will not matter does not justif)' taking it off the table for the cases in which it would matter. And if stripping the President of millions of dollars worth of benefits is added to the mix,"41 the incentive effect would easily be significant enough. Moreover, criminal prosecution is rarely if ever certain in the sorts of cases that lead to impeachmeI1ls."·! One might also argue that, for Presidents anyway, late impeachment is preferable to "regular" impeachment pl'ecisely because it does not involve removal. Thus, it is the Mleast disruptive way" to adjudicate presidential misconduct, and it ensures that external factors will not unduly sway the sober judgment of the Senate. 54' Without late impeachability, then, lame-duck oflicials are situated in a way that allows them to perpetrate offenses against the United States with relative impunity. Any disincentives to such conduct that can be erected would impro\'e this situation, and late impeachment is an obvious way to do just that.

E. Congress Defends Its Tll1f The structural problems that late impeachment helps to avoid have already been described."H Congress might find itself in a case where an executive or judicial official is thumbing his nose

540. See supra Pan VIIl.A. 541. See supra Part VIIl.B. 542. See supra note 235. 543. See Bestor, supra note 133. at 281 (-The n'mo\~11 of Ih,' oI(llIal hr.1(1 01 .1;1\,·. however, is potentially so tllreatening to the slabilily of 1;0\ t'nlln,'Jl\ IL,df. Ih.1I p"blu" opinion is usually prepared to allow precedents of cX"clllin' IL'"'lJalioll 10 .lcnlmll(;l\l· ramer man run me risks involved in impcachmcnt. Such ri_"'-. h()\~t'\t·r. di...lpp,·ar If .1 President is made to answer for \\illful \iolations of Iht' slIpn·m,· law aft"r h,' h.1S ct"N'd to be in office."). 544. See supra Pan V.

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at his would-be impeachers. If Congress is interested III preserving its role in government oversight, it would have to take action through late impeachment. If an onit-iars resignation amounts to something of a guilty plea and achieves removal without the expense and distraction of an impeachment trial, Congress would have no reason to proceed just to protect its turf. If, by contrast, the resignation is calculated to avoid disqualification, maintain a pension, or preempt public inquiry,;':; then Congress will want to assert itself. Thumbing one's nose at Congress (as the President does in Hypothetical 4>1f') would be-and should be-a surefire way to H7 spur Congress to pursue a late impeachment. F. Quick and t'asy

One objection to late impeachment is actually a reason in its favor. Given how cumbersome the impeachment process is, critics ask, why bother impeaching an ex-officer when the criminal justice system will probably handle the case itself? If an official is in office, impeachment is necessary to remove him even if he is convicted of a crime.-"H Once he is out of oHin·. though, removal is irrelevant, and the punishments that a judicial court can dole out may represent adequate punishment. Indeed, the punishment for violating the federal bribery statute can include disqualification (though this provision would seelll to be of dubious constitutionality) .-"., 545. Congress can still hold hearings and launch inVt',tigatiom without holding fllllblown impeachment proceedings. However. the impeachment prO( t'''' can he 't.II ted 1>\ anyone. Regular hearings. by contrrIng the (.IM· to Iht' forefront. .'Iff slt/)m Part V.D (discussing rolt- of IInpeadllllent ill light of cOllg,e,-"oll.11 power to launch lesser investigalions). 546. See sltpm text accompanying note 4. 547. CJ. BELK.""!' TRIAL. IIlpm note 18. at 87 (opinion of Sen.IIO! Shnlll.lII) ("It " not likely that the power to impeach persons not in office. for ollici.11 IIl1'co,ul\l( I wht'll in ollice. will often be invoked. and only in extreme case~ and whell Ihe offt'IItI(" 11('1" from justice by resignation:). 548. A striking example of this fact orrurred in 198(i. whell Judge Ila, rv (:I.uho,lIt· was convicted of tax evasion. Claiborne was wntellred to pri~on. whne he ,.11 'Tlel\'lllg his judicial salary. apparently intending to retake his .,eal on the la·1It h whell h" sentenre expired. Bl'SII;'>;ELL• .1Il/)m note 16. al 289. This lIIoved the Ilou~e 10 11111'1'.11 h him, /d, at 293, This spectacle recurred three year~ later III the (ase of Judge W.tllI" Nixon. who refused to resign despite being ullpn~olled, Nixon v. Ulliled SI.llt·~. :,()(i ll.S 224,227 (1993). 549. E.g.• 18 USc. ~ 201 (b) (1994) (spenfying that per,on COll\'i( It'd ulldt'l I" ,hen provision "may be disqualified frolll holding anv offire of hOllor, In"I, 0' 1" ofil ulldt"

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Law, History" and Practice of Late Impeachment


On the other hand, if a person is out of office and is being pursued by the criminal justice apparatus, there is much less reason not to impeach him-after the criminal process has run its course. Because the impeachment is Ulate" already, there would be litde pressure to conclude the impeachment quickly. Congress can simply wait for the criminal case to conclude and, if guilt is obvious, use the record developed by the court to perform an expedited impeachment and trial.~~ For this reason, if the pragmatic decision on whether or not to launch a late impeachment is based on a cost-benefit analysis, the "cost" may be much less than that of a regular impeachment. G. Potential Abuse As a final note, one might argue that glVlng Congress the

ability to impeach ex-officers introduces a dangerous potential for abuse. The impeachment power is one of the few held by Congress that carries with it no inter-branch check or balance. From its early near-abuse by Jeffersonians in the early 1800s to its highly politicized use against Presidents Johnson and Clinton, this dangerous potential of impeachment has often been at the forefront of debate. While as a practical matter, late impeachment may be susceptible to abuse, it is, however, subject to the s
HeinOnline -- 6 Tex. Rev. L. & Pol. 133 2001-2002


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convlctlOn is designed to be difficult to achieve'-"" Indeed, the Jeffersonian Republicans failed to convict Justice Chase and the rest of 171e Federalist judiciary; the Radical Republicans f~tiled to convict President Johnson; and the latter-day Republicans f~liled to convict President Clinton. The reasons are many, but most can be tied back to the original design of impeachment. Trial is placed in the Senate because it is designed to be a deliberative and relatively careful body'-"'2 A two-thirds mcyority is required for conviction in order to require that an impeachment conviction cannot occur without bipartisan support or, in the unusual event that one party has a two-thirds m<~jority in the Senate, without unusual party unity. In any case, the impeachers and triers are accountable to the voters. These structural safeguards are adequate for regular impeachment, and they are just as adequate for late impeachment.

H. Conrlusion While late impeachment is usually not worth pursuing, this Part of the Article has sketched out some reasons why it may be in future cases. The punishments available-disqualification and possibly others-may prove compelling. The case may present a unique opportunity to set a precedent or a good way to make an example of a lame duck offender. If the officer's affront to congressional power is too great, late impeachment provides a structured and restrained method of defending Congress's honor. Finally, the costs would be lower and the potential for abuse no higher than with regular impeachment. IX. CO:\CU'S!ON

Late impeachment provides a difficult problem of constitutional interpretation. It confront<; an ambiguous portioll of the text, which renders unclear whether the political focus of impeachment limits just the offenses and offenders who can be pursued or whether it also restricts the timing of the proceedings as well. But if the text is unclear, the history underlying it is not. Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never 55 I. Sf£' BEl.K.,\A!' TRI.\L, JII/ml note IH, at !J.I (opinion 01 Senator Wright) (1lI,ll..lllg ,imilar structural point about abuse); /(1. at 112 (opinion of Senator Mitchell) (',1111('). 552. THE FEDER.\LlSI :--io. 65. at :~97·9H (Akxander 1-I,lIl1ilton) (Clinton Ro,sll(" cd .. 19fil1.

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Law, History', and Practice oj Late /mpeachmnlt

explicitly ruled out in America, either in prc-17'd7 statc constitutions or in the federal one. Indeed. some statc constitutions made late impeachability explicit or cven rcquired. Constitutional structure is also consistent with latc impeachability. If the only purpose for impeachmeI1l werc removal, then there would be no reason to conduct a latc impeachment. But removal is not the only purposc of impeachment. Impeachment is designed as a deterrent to prevent offenses from occurring in the first place. and this deterrent effect would be severely undermined if it f;ldcci away near the end of a term. Moreover, convicted impeachees can bc disqualified from future federal office, an imponaI1l punishment that the offender himself should not be able to moot. Nor should the 'President be able to prccmpt a full investigation or full punishment; the Constitution forbids thc President from using his pardon power to achievc thcse ends, and late impeachment is the only way to prcvcnt an end run around this clear structural imperative. Although somc opponents of late impeachment make allowances for these extreme cases by allowing some late i'InpeachmcI1ls. in reality. no constitutional basis exists for distinguishing betwecn them. Finally, precedent favors late impeachability. Admittcdly. there is no wholly clear and binding authority. Statcs construing similar provisions have come to mixed results. 8111 the Scnate. which, in the end, is the final arbiter of this question. has approved late impeachment. Senatc opponcnts of late impeachment may have prevented cOIwictions. blll they have not prevented late trials, and they cannot altcr thc formal declaration of a majority of the Senate that oniccrs can bc impeached after they have left office. In practice, late impeachment may rarely if cver provc worthwhile to pursue. Then again, onc can imagine scvcral scenarios in which it might. Even if no occasion evcr arises in which late impeachment is worthwhile to pursuc. this would place late impeachment in the same class as rcgular impeachment-more important to have a\'ailablc than to actually use. No federal executive onidal has cvcr bccn impeached and convicted, either while in onice or aftcr lcaving it, but every federal officer is appropriately constraincd by thc possibility of impeachment, and it is only with late impeachmeI1l that this constraint can be properly wholc.

HeinOnline -- 6 Tex. Rev. L. & Pol. 135 2001-2002

HeinOnline -- 6 Tex. Rev. L. & Pol. 136 2001-2002