Donald Trump’s second impeachment trial is underway in the Senate. The proceedings mark the first time in American history that a president has been impeached twice. The effort to impeach Trump is controversial, in part, because he is no longer president. The House voted to impeach Trump on January 13, when he was still in office. But it waited until January 25 to deliver its article of impeachment to the Senate, when he was no longer in office.

The Trump impeachment trial therefore raises the question of whether the Senate can convict Trump now that he is no longer president; now that he is a private citizen and, therefore, no longer subject to House impeachment in the first place.

It is essential to distinguish between “trial” and “conviction” in assessing the Senate’s proceedings’ constitutionality. This is because the Constitution requires the Senate to hold a trial whenever the House sends its impeachment articles. When that happens, the Senate organizes itself in a trial posture to consider the articles and dispose of them somehow (i.e., by acquittal, conviction, or dismissal). In other words, the Senate cannot adjudicate charges outlined in the impeachment articles and decide how to dispose of them without organizing itself to hold a trial. The question here is how the Constitution allows the Senate to depose of impeachment articles when the official that the House impeaches is no longer in office.

LATE IMPEACHMENT

“Late impeachment” refers to the idea that the Senate can convict government officials after they leave office. For example, many constitutional law scholars assert that “the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.” While such claims appear to imply that the House may vote to impeach private citizens who previously served in office, the “late” in “late impeachment” typically refers to the timing of the Senate’s impeachment trial. An impeachment is therefore considered to be late if the Senate trial occurs after an impeached official leaves office.

Scholarly proponents of late impeachment base their claim that the practice is constitutional on “the text and structure of the Constitution, the history of its drafting, and relevant precedent.” Brian C. Kalt – a law professor at Michigan State University and the leading authority on late impeachment – makes a case for the practice’s constitutionality in a 2001 law review article. In that article, Kalt groups the evidence supporting late impeachment into five categories: the Constitution’s text and structure; pre-constitutional impeachment practices in Great Britain and America; delegates’ deliberations at the 1787 Federal Convention; state ratifying debates; and historical practice after the Constitution’s ratification.

But the evidence in each of these categories does not support claims that late impeachment is constitutional. The following analysis reviews the evidence in two categories: the Constitution’s text and the delegates’ deliberations at the 1787 Federal Convention. Evidence in the other three categories will be reviewed in future pieces.

THE CONSTITUTION’S TEXT

The case for late impeachment rests, at bottom, on the ambiguity that its proponents perceive in the Constitution’s text. In short, they claim that late impeachment is constitutional because the Constitution does not prohibit it explicitly. For example, many constitutional law scholars emphasize the fact that “nothing in the provision authorizing impeachment for removal limits impeachment to situations where it accomplishes removal from office.” And Kalt argues that “the text of the Constitution places several significant limitations on the impeachment power, but it never explicitly authorizes nor explicitly forbids late impeachment.”

This perceived ambiguity makes it possible for late impeachment proponents to read the practice into the Constitution while claiming that the case for it is straightforward. (Note: Kalt, in a refreshing illustration of scholarly integrity, concedes that the evidence supporting late impeachment is itself ambiguous.) By emphasizing the Constitution’s ambiguity (whether real or imagined), proponents of late impeachment shift the debate over the practice from what the Constitution permits based on concrete evidence to what it must allow based on their own inferences and reasoning.

This may be a useful negotiating tactic. But it does not help determine whether the Senate can convict a former president. It also is not an accurate description of the Constitution’s impeachment provisions and the process that led to their creation.

IMPEACHMENT 101

The Constitution gives the House “the sole Power of Impeachment” (Article I, section 2, clause 5). “Sole Power” here means that the House has the exclusive power to initiate the impeachment process by impeaching a specific individual and adopting articles of impeachment against him or her. The Senate cannot hold an impeachment trial if the House does not act first under the Constitution.

The Constitution also defines which individuals the House can impeach (Article II, section 4). Specifically, it stipulates, “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.”  In other words, the House can impeach the president, vice president, and all “civil officers.”

The Constitution gives the Senate “the sole Power to try all Impeachments” (Article I, section 3, clause 6). “Sole Power” here means that the Senate has the exclusive power to hold an impeachment trial. The Chief Justice must preside over that trial if the person impeached is the president. And two-thirds of senators present (67 assuming 100 senators are present) are needed to convict a president, vice president, or civil officer of the United States.

While the Constitution gives the Senate “sole Power to try all Impeachments,” it explicitly limits what senators can do at the end of the trial (Article I, section 3, clause 7). Specifically, it limits the Senate’s judgment to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.”

The Constitution limits the president’s pardon power by specifying that it shall not apply to impeached individuals. And it distinguishes impeachment proceedings from criminal trials. It stipulates that impeached officials “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” (Article I, section 3, clause 7). It further distinguishes between impeachment trials and criminal trials by specifying “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury” (Article III, section 2, clause 3).

THE IMPLICATIONS OF AMBIGUITY

Proponents of late impeachment argue that the Constitution does not rule out the practice so that they can infer that it authorizes the practice indirectly. For example, Kalt assumes – incorrectly – that “the Constitution establishes that the House and Senate have the main responsibility for construing the breadth of their own impeachment powers.” He contends that this is because the House and Senate “are given the sole powers to impeach and try impeachments, and they are also given the authority to make their own rules for their proceedings.

Kalt does not acknowledge, however, that the Senate’s current rules do not authorize it to convict former officers. And he fails to mention that the Constitution’s plenary grant of rule-making power to the House and Senate (Article I section 5, clause 2) does not empower them to use that power to violate or contradict the Constitution by circumventing its list of people subject to impeachment.

The Supreme Court underscored the relationship between Congress’s rule-making power and the Constitution in the 1892 case, United States v. Ballin. In that case, the Court conceded that House and Senate majorities are free to adopt rules. But that power was not unlimited. Justice David Brewer pointed out that while “the Constitution empowers each house to determine its rules of proceedings,” the House and Senate cannot, by their rules, “ignore constitutional restraints or violate fundamental rights.”

In other words, late impeachment must be authorized by the Constitution directly because it gives the federal government the power to impeach and convict people who are not listed in Article II, section 4. This would not be the case if Article II, section 4 included “former officials” in the list of officials subject to impeachment.

Late impeachment proponents also contend that the practice is permitted because the Constitution allows the Senate to remove impeached officials from office upon conviction and disqualify them from holding future office. For example, in support of late impeachment, constitutional law scholars argue that “the Constitution’s impeachment power has two aspects. The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted.” These scholars reason that the Constitution’s “impeachment power must be read so as to give full effect to both aspects of this power.”

But there is no evidence that the Constitution empowers the Senate to choose removal from office or disqualification from holding future office at the end of an impeachment trial when it renders judgment. How Article I, section 3, clause 7 is written affirms the view that disqualification is derivative of removal. Its reference to “disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States” represents the dependent clause in the sentence. Put differently, disqualification is not an independent clause in the judgement power that can stand apart from removal. Suppose proponents of late impeachment were correct that disqualification is not derivative of removal and that the Senate has full recourse to both when rendering judgment in an impeachment trial. In that case, the Senate could keep an impeached official in office but vote to disqualify that official from holding future office.

PROBLEMS OF SCOPE

Late impeachment proponents also have a scope problem. Nothing in their case for the practice limits its scope to government officials and former government officials. Kalt dismisses this argument, countering that the definition of the word “impeachment” limits its scope to public officials and former public officials.” He argues that “the impeachment power is inherently limited by the bounds of the definition of the term ‘impeachment’ itself, and those bounds do not include impeaching wholly private citizens. They do, however, include late impeachment.” Without citing any evidence to support his distinction between “wholly private citizens” and former officials (or “technically private citizens”), Kalt argues that “wholly private citizens” were “pursued through the regular criminal process, or through attainder, but not through impeachment.” He notes that “when the newly independent states wrote their constitutions, they made this limitation clear. The single exception to this was that former public officials – technically private citizens at the time of trial  – were impeached for prior public actions.”

The problem with Kalt’s argument is that the documentary record does not support his conclusions regarding the constitutionality of late impeachment. Kalt does not identify any evidence in the Constitution’s text that expands the impeachment power’s scope to cover private citizens/former government officials. Nor does he cite evidence that it does not cover private citizens once if the scope is expanded. Kalt’s argument also undermines his claim that impeachment’s definition limits its scope. For example, the definition of impeachment in Great Britain in the 1780s included private citizens. Kalt refers to the English practice as “the ultimate foundation of American impeachment” and cites Americans’ familiarity with that practice as evidence indicating their tacit support for late impeachment. But if Kalt is correct, Americans would not understand the definition of impeachment to exclude private citizens.

Of course, Americans rejected much of the English impeachment practice after they won their independence. But they did not then adopt a standard definition of impeachment. The procedure was defined and implemented differently in the constitutions of the newly independent states. For example, Delaware’s Constitution of 1776 authorized government officials’ late impeachment up to 18 months after they left office. Virginia’s 1776 constitution also authorized late impeachment. In contrast, New York’s Constitution of 1777Massachusetts’ Constitution of 1780, and New Hampshire’s Constitution of 1784 allowed government officials’ impeachment when they were in office. And Maryland’s Constitution of 1776 did not provide for the impeachment of its chief magistrate.

THE FEDERAL CONVENTION OF 1787

Proponents of late impeachment cite delegates’ deliberations at the 1787 Federal Convention that drafted the Constitution as evidence of the practice’s constitutionality. But a review of those deliberations does not produce the evidence to substantiate their claims. Instead, the documentary record reveals that the delegates considered impeachment and removal to be two sides of the same coin and that they believed one could not happen without the other. This undermines the claims of late impeachment proponents that impeachment and removal were separate phenomena.

While the delegates agreed that impeachment equaled removal (and not late impeachment when removal from office was no longer operative), they disagreed over which government officials should be subject to impeachment/removal. Their deliberations on that questions, as well as the evolution of the draft Constitution’s impeachment provisions more generally, do not “suggest that late impeachment was accepted,” as Kalt claims.

THE VIRGINIA PLAN

The delegates first discuss impeachment in the context of the Virginia Plan, which Edmund Randolph (Virginia) introduced to the convention on May 29. Among its provisions, the Virginia Plan established a national judiciary and gave it jurisdiction to decide “impeachments of any National officers.” Notably, the Virginia Plan did not stipulate that the new government’s chief magistrate/president was subject to impeachment. This is because the delegates distinguished between “National officers” and the president at this stage in their deliberations. And they disagreed on the question of presidential impeachment at this stage in the convention’s proceedings.

This distinction is evident in the plan that Charles Pinckney (South Carolina) presented after Randolph presented the Virginia Plan. Pinckney’s plan stipulated that the president “shall be removed from his office on impeachment by the house of Delegates & Conviction in the Supreme Court” (Article 8). It separately gave the Supreme Court jurisdiction to determine “impeachments of Officers of the United States,” including “Ambassadors & other public Ministers” (Article 9).

William Paterson (New Jersey) also distinguished between “National officers” or “Officers of the United States” and the president in the plan of government that he presented to the convention on June 15. His New Jersey Plan stipulated that the president was to be “removable by Congs. on application by a majority of the Executives of the several States.” The plan did not stipulate that government officials other than the president were subject to impeachment and removal from office. Alexander Hamilton (New York) likewise presented another plan of government to his fellow delegates on June 18 that applied impeachment to government officials differently.

PRESIDENTIAL IMPEACHMENT

The delegates’ deliberations on June 2 provides evidence that the Virginia Plan’s impeachment power did not initially apply to the president and that the delegates distinguished between “national officers” and the nation’s chief magistrate. John Dickinson (Delaware) and Gunning Bedford, Jr. (Delaware) tried to amend the Virginia Plan to make the president “removable by the national legislature upon request by a majority of the legislatures of the individual states.” The convention rejected an effort to strike “upon request by a majority of the legislatures of the individual states” from the Dickinson-Bedford amendment by a vote of 7 states to 3. The convention then rejected Dickinson-Bedford amendment by a vote of 9 states to 1.

After the delegates agreed to make the president ineligible to serve more than one term in office, Hugh Williamson (North Carolina) and William Richardson Davie (North Carolina) proposed that the president be “removable on impeachment and conviction of mal-practice or neglect of duty.” The convention adopted the Williamson-Davie amendment by a vote of 6 states to 4.

Kalt identifies the Williamson-Davie amendment vote as evidence of the delegates’ tacit support for late impeachment. That is, he argues that it demonstrates that the delegates distinguished between impeachment and removability. Kalt also infers tacit support for late impeachment (despite a lack of evidence) based solely on the four states that opposed the Williamson-Davie amendment- Delaware, Maryland, Pennsylvania, and Virginia. Kalt asserts, “It is readily inferable…that while the Virginia and Delaware delegates opposed the idea of removing a sitting President by impeachment, they would not have objected to late impeachment of the President.” Kalt notes that Pennsylvania’s constitution allowed late impeachment and speculates “its delegates may have felt the same way as Virginia and Delaware.” But Kalt does not provide evidence for his inference. Nor does he explain why Maryland – a state that did not provide for its chief magistrate’s impeachment – voted against the Williamson-Davie amendment along with Delaware, Pennsylvania, and Virginia.

The documentary record for June 2 does not support Kalt’s contention that “it is readily inferable…that…the Virginia and Delaware delegates opposed the idea of removing a sitting President.” Delegates from Delaware and Virginia, in whose behavior Kalt finds evidence of tacit support for late impeachment, underscored the importance of impeaching (and removing) sitting presidents. They also emphasized the connection between impeachment and removability.

For example, Dickinson (Delaware) argued that “it was necessary…to place the power of removing somewhere.” Dickinson acknowledged that he “did not like the plan of impeaching the Great Officers of State.” But he conceded that he “did not know how provision could be made for removal of them in a better mode than that which he had proposed.” Dickinson also proposed making the president subject to removal while in office.

George Mason (Virginia) and James Madison (Virginia) each stressed the importance of removing a sitting president by impeachment. In response to Roger Sherman’s (Connecticut) contention “that the National Legislature should have the power to remove the Executive at pleasure, Mason argued that “some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.” Contrary to Kalt’s inference that Virginia’s delegates opposed removing a sitting president by impeachment, Mason’s remarks reveal that the Virginian opposed only “making the Executive the mere creature of the Legislature.” In other words, Mason opposed giving Congress the power to impeach/remove a sitting president. He did not oppose the very idea of removing a sitting president.

Madison was likewise concerned that the impeachment power’s design made the president dependent on Congress. He feared “that it would enable a minority of the people to prevent ye. removal of an officer who had rendered himself justly criminal in the eyes of a majority.” William Pierce (Georgia) noted Madison’s concern in his notes of that day’s debates. He recorded Madison as saying, “it was far from being his wish that every executive Officer should remain in Office, without being amenable to some Body for his conduct.”

At this stage in the proceedings, the draft Constitution included two impeachment provisions. First, it stipulated “that a national Executive be instituted…to be removable on impeachment and conviction of mal-practice, or neglect of duty. Second, it stipulated “that the jurisdiction of the national Judiciary shall extend to…impeachments of any national Officers.” The delegates unanimously affirmed their support for the second provision on June 13. However, the convention revisited the first provision on July 19 when Gouverneur Morris (Pennsylvania) objected to making the president “impeachable.” Morris argued, “this is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest.” Morris concluded, “If [the president] is to be a check on the Legislature let him not be impeachable.” Morris’s objections here do not imply that he tacitly supported late impeachment, a point that he makes clear in the following day’s debate

THE PINCKNEY-MORRIS MOTION

Proponents of late impeachment like Kalt cite the debate over Pinckney and Morris’s effort to strike “to be removable on impeachment and conviction” from the draft Constitution as evidence of the practice’s constitutionality. Kalt contends, “This debate was really not about impeachment – it was about removability. The clause that Pinckney was trying to eliminate provided that the President was ‘to be removable,’ not that he be impeachable.’ National officers were generally impeachable; the issue here was, as Pinckney put it, whether the President (whose term was otherwise 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’ impeachment was acceptable as well.

But Kalt provides no evidence that Pinckney “presupposed the possibility of late impeachment.” And a review of the debate on July 20 highlights several problems with Kalt’s reasoning. First, the draft Constitution provided that national officers and the president be removable by impeachment in separate provisions. This is because the delegates distinguished between national officers and the president in their deliberations on the Constitution’s impeachment provisions and some disagreed on whether to adopt presidential impeachment in the first place. Consequently, the Virginia Plan’s original impeachment provisions did not subject the president to impeachment and removal on conviction.

Acknowledging this distinction highlights the second problem with Kalt’s reasoning. If successful, the Pinckney-Morris motion would have eliminated presidential impeachment from the draft Constitution altogether. It would not have subjected the president to the general impeachment process originally authorized in the Virginia Plan as Kalt argues because that process only applied to national officers. And it would not have authorized late impeachment.

Third, Pinckney makes clear in the subsequent debate over his motion that he was opposed to the legislature impeaching the president because it would give it undue influence over him. In this context, late impeachment – according to its proponents – would do the same thing in Pinckney’s mind as so-called regular impeachment. Both would give the legislature influence over the executive.

Fourth, the delegates’ remarks in the debate over the Pinckney-Morris motion contradict claims that they tacitly supported late impeachment. Delegate after delegate stressed the importance of making the sitting president subject to impeachment “whilst in office.” For example, Davie (North Carolina) argued that if the president “be not impeachable whilst in office, he will spare no efforts or means whatever to get himself elected. For that reason, the North Carolinian “considered this an essential security for the good behavior of the Executive.” James Wilson (Pennsylvania) concurred with Davie on the “necessity of making the Executive impeachable whilst in office.”

Morris’s halfhearted defense of his motion with Pinckney (Morris would shortly change his mind on the question of presidential impeachment) indicates that a desire to sanction late impeachment only was not his motivation for trying to strike presidential impeachment (which is good for Morris’s sake because his effort would not have accomplished that goal). Morris argued that the president “can do no criminal act without Coadjutors who may be punished [i.e., national officers]. In case he should be re-elected, that will be sufficient proof of his innocence. Besides, who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement and will render the Executive dependent on those who are to impeach.” Morris here reiterates his concern as it related to the consequences of making the president impeachable by Congress. It makes one branch of government dependent on another branch. These concerns are not alleviated entirely by making the president impeachable after he leaves office. As such, the central motivation of the Pinckney-Morris effort to strike presidential impeachment is incompatible with the logic underpinning the case for late impeachment.

Kalt further misreads the delegates’ deliberations in his analysis of Mason’s contribution to the debate over the Pinckney-Morris motion to strike presidential impeachment. He notes, “Madison quoted Mason as speaking of the right of impeachment being ‘continued,’ as opposed to it merely being ‘available.’ This suggests that 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 either impeachment in office or none at all. In other words, Mason appeared to presuppose late impeachability.”

Such reasoning is not supported by the documentary record. Mason acknowledges in the debate on July 20 that the question raised by the Pinckney-Morris effort to strike presidential impeachment was whether “the right of impeachment” would be in the Constitution, not when it would be exercised. “No point is of more importance,” Mason argued, “than that the right of impeachment should be continued.” Mason uses “continued” here in the straightforward context of keeping the provision authorizing presidential impeachment in the draft Constitution (i.e., continuing it). Mason opposed the Pinckney-Morris effort precisely because he wanted the impeachment provision they targeted to remain in the draft. Mason asked his fellow delegates, “Shall any man be above Justice? Above all [the president] be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors.” Mason then reveals that he thought the president ought to be impeachable whilst in office, not after he leaves office. “Shall the man who has practices corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” “Repeating his guilt” here refers to a president practicing corruption to win re-election and, by extension, remain in office. At no point in the debate does Mason indicate support for late impeachment. He is concerned solely with impeachment in office, which is why he opposed the Pinckney-Morris motion to strike presidential impeachment.

Other delegates echoed Mason. For example, Benjamin Franklin (Pennsylvania) “was for retaining the clause [on impeachment] as favorable to the executive” because it protected [the president] from violence. “What was the practice before this in cases where the Chief Magistrate rendered himself obnoxious?” Franklin asked his colleagues. “Why recourse was had to assassination in wch. He was not only deprived of his life but of the opportunity of vindicating his character. It wd. be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it and for his honorable acquittal when he should be unjustly accused.” Franklin’s sober assessment of the role assassination had played throughout history and his support for impeachment as a better alternative to it indicate that he did not believe that late impeachment would achieve the same goal as regular impeachment. As Franklin put it, individuals in power are assassinated by people who want them out of power. By that same logic, late impeachment does not operate the same way in this context because it operates on private individuals.

Still, Pinckney remained unpersuaded on the question of presidential impeachment. He “did not see the necessity of impeachments.” And he believed that impeachments “ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence.”

In contrast, Madison thought “it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers…In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.” Here, Madison acknowledges that he is concerned with presidents in office, not out of office.

Echoing Pinckney, Rufus King (Massachusetts) argued that “under no circumstance ought [the president] to be impeachable by the Legislature. That would be destructive of his independence.” King contended that impeachment only made sense when the person subject to impeachment “held his place for life, and was not periodically elected.” Note that life tenure precluded the option of late impeachment altogether, suggesting that King did not secretly think of late impeachment when he heard the word impeachment.

At this point in the debate, Morris – Pinckney’s original partner in the effort to strike presidential impeachment altogether – announced that he had changed his mind on the issue. “He was now sensible of the necessity of impeachment, if the Executive was to continue for any time in office…The Executive ought therefore to be impeachable for treachery; Corrupting his electors; and incapacity were other causes of impeachment…he should be punished not as a man, but as an officer, and punished only by degradation from his office.”

LAST-MINUTE CHANGES

The draft Constitution’s impeachment provisions remained unchanged until the Committee of Detail reported its work to the convention on August 6. The Committee’s report gave the House “the sole power of impeachment” but stipulated that the Supreme Court try impeachments of the president and “Officers of the United States.” The report also limited judgment in impeachment cases to “removal from Office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States.” Finally, the report stipulated that impeached officials were “liable and subject to indictment, trial, judgment and punishment according to law.”

Still, many of the delegates remained unpersuaded that the Senate was a good place to try impeachments. Reflecting that concern, the delegates agreed to submit the impeachment provisions to a Committee on Postponed Matters at the end of August.

The Committee on Postponed Matters reported two provisions related to the impeachment power on September 4. One stipulated, “the Vice President shall be ex officio, President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside.” Another one stipulated, “the President…shall be removable from his office on impeachment by the House of representatives, and conviction by the Senate, for treason or bribery, and in case of his removal as aforesaid…the Vice President shall exercise those powers. And it required an affirmative vote of two-thirds of the members present to convict an impeached official.

Delegates were ultimately persuaded to transfer jurisdiction to try impeachments to the Senate because the president nominated the members of the judiciary and, therefore, could have an undue influence on what those members ruled in an impeachment trial. The delegates also believed that it would be inappropriate for the Supreme Court to try impeachments of government officials and then subsequently try criminal cases against the same individuals after they left office for acts related to their initial impeachment. Morris observes, “A conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of impeachment.”

And still, Pinckney remained opposed to presidential impeachment, in part because the draft Constitution empowered the Senate – which now tried impeachments – to select the president when no candidate had the required number of votes to win outright. In such circumstances, the draft Constitution’s impeachment provisions “makes the same body of men which will in fact elect the President his Judges in cases of an impeachment.

WARREN HASTINGS

Kalt and other proponents of late impeachment point out that the delegates referenced the ongoing English impeachment trial of Warren Hastings (a late impeachment) during their deliberations.  Specifically, Mason references Hastings during a larger debate among the delegates over the types of behavior that they should designate impeachable offenses. Mason asked his fellow delegates, “Why is the provision restrained to Treason & Bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined – As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachment.”

Kalt infers that Mason’s remarks are supportive of late impeachment because the Hastings’ trial occurred after he left office. “If aspects of the Hastings case – such as the fact that Hastings was out of office – were seen as unacceptable, it would be surprising if Mason would have used it as an example of a good impeachment, and then 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.”

But Kalt’s inference here – widely repeated by scholars and politicians alike – is not supported by the documentary record. It is instead based on speculation. That speculation downplays, if not ignores, the fact that Mason referenced Hastings as an example of what the delegates should consider impeachable offences to be, not when impeachment trials should occur. In other words, Mason was not recommending secretly that his fellow delegates secretly authorize late impeachment by not including it in the Constitution (the late impeachment claim). This is also evident in the amendments that Mason offered to the draft Constitution at that point to expand its definition of impeachable offenses. Notably, Mason did not reference late impeachment in his amendments, the first of which proposed adding “maladministration” to the list of impeachable offenses.

Madison worried that Mason’s effort to add “maladministration” to the list of impeachable offenses upset the balance of power between the president and Congress. “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Madison’s reference to an impeached official’s time in office being subjected to the Senate because of Mason’s amendment underscores the fact that Mason’s reference of Hastings had nothing to do with late impeachment. The delegates were concerned about the impact of Mason’s amendment on government officials, not private citizens (or former government officials). And Morris thought the debate over Mason’s amendment was insignificant because “an election of every four years will prevent maladministration.” In response to these concerns, Mason substituted “other high crimes & misdemeanors” for “maladministration,” which the convention approved by a vote of 8 states to 3.

On September 14, John Rutledge (South Carolina) and Morris revisited the impeachment issue by proposing “that persons impeached be suspended from their office until they be tried and acquitted.” Contrary to the claims of late impeachment proponents, the Rutledge-Morris motion presupposed that impeached officials were in office at the time of their impeachment and trial. While the convention rejected the motion by a vote of 8 states to 3, their effort provides additional evidence that the delegates thought of impeachment only in the context of government officials. They did not think that former officials were subject to impeachment, much less private citizens. According to Madison, “The President is made too dependent already on the Legislature, by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only – They can at any moment, in order to make way for the function of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.”

THE TAKEAWAY

A review of the Constitution’s text and the delegates’ deliberations at the 1787 Federal Convention raises significant questions about the case for late impeachment. It demonstrates that the reasoning of late impeachment proponents is not supported by the documentary record – at least in these two categories. It also yields evidence that suggests late impeachment is not constitutional.