Impeachment and Trial After Officials Leave Office

The second impeachment of President Donald J. Trump raised an important and unresolved question: May Presidents and other federal officers be impeached or tried on impeachments after they have left office? Most Democrats argued that former officers can be both impeached and tried; most Republicans argued that former officers can neither be impeached nor tried. Trump himself was impeached while still in office and tried – and acquitted – after he left office. This is the sort of question that could easily arise again, in connection with presidents and other officers of either party, and it needs an answer that does not shift with every gust of partisan wind.

As Alexander Hamilton warned in The Federalist, No. 65, impeachment proceedings “will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly or inimical, to the accused,” and thus there is “always the greatest danger, that the decision will be regulated more by the comparative strengths of parties” than the merits of the case. It is not wise to wait until the heat of the moment to think about these things, or allow structural issues of this sort to be resolved on the basis of case-by-case judgments, which will be heavily influenced by the very passions Hamilton warned against.