The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment

Abstract

This article considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him. (3) The precedents are mixed, but the Senate has approved late impeachment. Senate opponents of late impeachment have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate in one case that officers can indeed be impeached after they have left office.

Keywords: Impeachment, constitutional law, structuralism

JEL Classification: K19